Will Scotland have its constitutional moment?

The constitutional expert, Vernon Bogdanor, observes that one reason why Britain has never adopted a written, or codified, constitution is that unlike many other democracies, Britain has never enjoyed a ‘constitutional moment’. A point, which in many states followed revolution or independence, at which it was considered natural to write down the key principles on which the state would be governed. However, if the Scottish people vote for independence in September 2014, Scotland, and arguably the rest of the United Kingdom as well, will be faced with just such a constitutional moment. In preparation for this, earlier this year the Scottish SNP Government published proposals for the post-independence adoption of a written constitution for Scotland.

The short paper also deals with the two problems identfied by Bogdanor in drafting a written constitution in modern Britain: what will be its scope and who will be responsible for drafting it.  To take the latter first, the Scottish Government proposes that a written constitution should be drafted after independence under the auspices of the Scottish Parliament, which will be responsible for devising the process and timetable for drafting the constitution. However, it also makes clear that ‘the creation of Scotland’s written constitution should engage all the people of Scotland in the process of nation-building and allow them a say in defining how our country will work.’ In order to do this, it proposes the creation of a constitutional convention, to some extent modelled on that which drafted the US constitution in 1787. Although it states that the composition of the convention should be decided by the Scottish Parliament, it does suggest that in addition to politicians and the people, it should also include civil society organisations, business interests and trades unions, which is a somewhat more inclusive approach than that adopted by the framers of the US constitution. The paper is less clear about the scope of a written constitution, but here again there are some markers.  Rather like the US constition it is clear that these proposals are designed as a reaction against the Westminster model which it claims has allowed governments to make major decisions, such as going to war, without proper challenge. Another similarity with the US model is that the proposed constitution should not simply be designed to codify how the institutions of state interact with each other and with the people, but that a Scottish constitution should also include a statement of Scottish values.  Interestingly although these values are not defined in any great depth, in an oddly prescriptive passage, it does suggest that they ‘will’ include, provisions to strengthen individual rights in areas such as homelessness and education; the prevention of weapons of mass destruction being based in Scotland; and somewhat paradoxically, measures to prevent the government from engaging in illegal wars. These all seem like interesting ideas but whether or not they are values, and Scottish values at that, seems a rather moot point, but if one is proposing to consult on drafting a written constitution it is perhaps a good idea to get your suggestions in first. Whether any of this will ever happen, seems unlikely but it is an interesting example of a modern British approach to constitution writing.

Posted in Uncategorized | Tagged , | Comments Off on Will Scotland have its constitutional moment?

Who Runs Britain? Poll, 11 October 2013

The results of the first Who Runs Britain? opinion poll of the year are as follows:

If there were a general election tomorrow which party would you vote for?

Party

Number

%

Conservative

22

35

Labour

26

41

Liberal   Democrat

2

3

Green   Party

6

10

UK   Independence Party

3

5

Some   other party

4

6

Don’t   Know

3

4

I   would not vote

3

4

The other parties supported gained one vote each. They were: the Pirate Party; Libertarian Party; The Monster Raving Lunatic Party; and “Just Nick Clegg” which as far as I know is not a party, but may well be after the next general election.

The figures were calculated as follows:

In calculating the percentage support for each party the responses Don’t know and I would not vote were excluded, ie the total used was 63 not 69.

In calculating the percentage of Don’t know and I would not vote responses, the figure for all responses was used, ie the total used was 69 not 63.

What does the poll tell us?

Important health warning: we should be careful about drawing any general conclusions from this poll beyond what it tells us about the voting intentions of those studying the level 1 politics module, Who Runs Britain? at the University of Lincoln in October 2013. Professional polling organisations carrying out similar polls generally use a sample of around 1000 people, from across the UK, weighted to reflect factors such as sex, age and social class.  Not only is the sample used in our poll very small, it is also somewhat unrepresentative of the rest of the population in a number of ways including: it is younger, it is not balanced according to gender, and probably contains few homeowners, people in full-time employment or indeed taxpayers, but consists entirely of students, and moreover, students who are interested in politics. In short it is in many respects rather unrepresentative of the population as a whole.

Moreover, even if we set aside problems with the sample, because of the nature of the British electoral system it is difficult to assess what a result such as this would mean if it were reflected by voting in a general election. The system of  first-past-the-post, which is used to allocate seats in British general elections means that the proportion of the vote won by each party is less important than the number of seats won. Under this system the country is divided into 650 constituencies of roughly equal size (in terms of population) each of which elects one Member of Parliament. The winning party is the one which wins the most seats. In order to win a seat a candidate merely needs to attract more votes than any other single candidate. This can, and often does, mean that a seat is won by a candidate with less than 50% of the vote, as long as the remaining share of the vote is divided between more than one other candidate. It also means that party’s can, and usually do, win a general election with less than 50% of the popular vote and that a proportion of the vote which is some way short of an absolute majority is usually transformed into a large majority of seats in parliament. For example, in the 2005 general election, Labour won about 35% of the popular vote, but won 55% of the seats in parliament, in the 2010 general election the Conservatives won 36% of the vote but only 47% of seats in Parliament.

The Who Runs Britain? poll does not reflect voting across the country and does not take account of the different constituencies in which those polled may be voting. It is impossible therefore to derive any concrete figures about what this result would mean in terms of seats won in a general election. Nevertheless, it may be fun to indulge in some speculation about what these results might mean by comparing them with other polling data.

The National Picture

Despite all the caveats above, perhaps the most striking thing about this poll is that it is remarkably similar to recent national opinion polls (see table 1 below). In the latest YouGov poll for The Sunday Times, which was taken on the same day as our poll, Labour polled 39% of the vote and the Conservatives 34%. The fate of the other parties was somewhat different than in our poll. The Liberal Democrats only managed to attract two votes, 3% in our poll, compared with 9% in The Sunday Times poll. Although Liberal Democrat fortunes have fallen significantly since they polled 23% in the 2010 general election, with poll ratings often in single figures, it has never fallen as low as 3% in national opinion polls. However, there may be very particular reasons why they have polled so badly in this poll, more about that below. For much of the last 18 months the Liberal Democrats have been battling it out for for fourth place with UKIP, and UKIP also attracted slightly more votes than the Liberal Democrats in our poll, although 5% of the vote is somewhat lower than the level UKIP have been achieving in recent national polls. The Green Party also did relatively well in our poll. The Green Party won 1% of the vote in 2010, which was enough to secure them a seat in Parliament. However, although their fortunes have increased a little since then, they are still polling in the low single figures in national polls. The relatively high level of support for the Greens in our poll, perhaps reflects their key support among young voters.

Table 1: Comparison with YouGov/Sunday Times poll of 10-11 October 2013

Party YouGov/Sunday Times Poll  11/10/13 Who Runs Britain? poll 11/10/13
Conservative

34

35

Labour

39

41

Liberal Democrat

9

3

UKIP

11

5

Green

3

10

Other Parties

5

6

The Local Picture

It is also interesting to compare these results with some more local data (table 2). In the 2010 general election Labour lost the seat of Lincoln to the Conservatives with a 6% swing from Labour to the Conservatives. This was the first time since 1997 that the seat of Lincoln had changed hands, reinforcing the impression that Lincoln is a ‘bellwether’ constituency, that is a constituency which reflects what happens in the rest of the country, i.e. win Lincoln and win the general election. Obviously, the indeterminate outcome of the 2010 election might lead us to qualify this somewhat. Nevertheless, Lincoln is a key marginal seat, the current Conservative MP, Karl McCartney, has a majority of 1048 and Lincoln is 18 on Labour’s list of 106 target seats for the 2015 general election.

Table 2: Comparison with results in constituency of Lincoln in 2010 general election

Party

Lincoln 2010

 

Who   Runs Britain?   poll

Conservative

38

35

Labour

35

41

Liberal Democrat

20

3

Other parties

7

21

Another interesting thing about Lincoln is that the University and most of its students are located within a single constituency. If one considers the size of Mr McCartney’s majority and the fact that there are over 10,000 students at the University of Lincoln  the student vote could prove decisive. If the results of our poll were replicated across the University, Labour would get 664 more votes than the Conservatives. Although this looks like a significant chunk of Mr McCartney’s majority we do need to bear in mind that we don’t know how students in Lincoln voted in 2010. Moreover, this is based on the assumption that all students will vote and will vote in Lincoln, when in reality turnout amongst students is generally quite low, and students have the option of voting in the place they are studying or in their home constituency if these are different, which means the student vote tends to spread out across the country and is rarely decisive in particular constituencies. Nevertheless, it may be that in the wake of the introduction of increased tuition fees, the student vote will be more organised in the next general election in which case in seats in places like Sheffield, Bristol, Cambridge and Lincoln, it may prove decisive.

Previous cohorts of Who Runs Britain? students

Perhaps the most interesting comparison, for me if not for anyone else, is with previous cohorts of students on the Who Runs Britain? module. I began polling first year students on this module in 2009. I polled each cohort at the beginning of their degree, and then on four further occasions throughout the year. The table below compares this poll with the previous four cohorts polled in October. The Who Runs Britain? Tracker Poll shows the result of every poll I have conducted since 2009. As a cohort, the 2013 intake is considerably less left-wing than last year’s intake, and is perhaps closer to the national opinion polls than any previous cohort at this point, although the 2009 intake did track pretty close to national trends throughout the year. 

Table 3: Comparison with previous Who Runs Britain? cohorts polled at the same time

Party

Oct 2009

Oct 2010

Oct 2011

Oct 2012

Oct 2013

Conservative

39

25

40

30

35

Labour

30

48

37

60

41

Liberal Democrat

12

15

2

5

3

Green

12

10

Other

6

13

8

5

11

If we look at the tracker poll, perhaps the most striking thing in these polls has been the decline in support for the Liberal Democrats. The Liberal Democrats enjoyed a high level of support amongst the 2009 intake and their support increased in the run-up to the 2010 general election. In the final Who Runs Britain? poll before the 2010 general election the Liberal Democrats secured 28% of the vote, six points ahead of the Conservatives. However, from this point Liberal Democrat support went into terminal decline. They still managed to secure 15% of the vote in October 2010, but the announcement in November 2010 of the introduction of £9000 tuition fees, which the Liberal Democrats had promised to oppose when in Opposition, appeared to seal their fate, at least among students on this module. In the final three polls of the 2010 cohort (February, March and May 2011) only one student voted Liberal Democrat, and only once (in March 2011). The Liberal Democrats have fared little better since, no more than three students have voted Liberal Democrat in any individual poll since  November 2010, and then only once. In last year’s polls the Liberal Democrats never managed to attract more than two votes and by the time of the final Who Runs Britain? poll of the year, in May 2012, Liberal Democrat support had once again evaporated completely.

It is hard to know who exactly has benefited from this decline in Liberal Democrat support in these polls. There has certainly been an increase in support for other smaller parties, most notably the Green Party, who in this poll pushed the Liberal Democrats into fourth place, as they did throughout last year. But there is also some evidence that opinion has drifted back to the two main parties, particularly in last year’s polls. However, the significant support for smaller parties in this poll suggests this may be an interesting year.

WRB Tracker Poll

 

Turnout

Perhaps not surprisingly given that this is a poll of politics students, only three people declared that they would not vote if there were a general election tomorrow, and only three were  undecided. This suggests a turnout of over 90% which is much higher than at any general election since the Great Reform Act of 1832. Turnout at general elections in the UK since the Second World War has generally been between 70%-85%, although in recent elections it has been lower. Turnout at the 2010 general election was 65% up from a record post-war low of 59.4 in 2001. What is also quite reassuring is what this poll says about turnout at lectures for this module. 69 people voted, and according to my records there should be 77 students studying on this module, which suggests that turnout for the lecture was around 90%. This is considerably higher than the 65% turnout for this poll last year, which perhaps says something about the University’s new attendance monitoring policy!

 

Posted in Uncategorized | Tagged | Comments Off on Who Runs Britain? Poll, 11 October 2013

Peter Hennessy and the writing down of the British Constitution

Professor Peter Hennessy is one of the best chroniclers of the British constitution, partly because his work is so readable, because he is so well-connected, and also because of his fondness for asking the ‘what if?’ questions about the constitution. His book The Secret State: preparing for the Worst 1945-2010 (actually an up-dated version of an earlier book) looks in detail at what would have happened in the event of a nuclear attack against the United Kingdom during the Cold War. Drawing on official documents he looks at those plans which were drawn up for the transition to a Third World War including the evacuation of the government to a bunker in the Cotswolds, and the despatch of the Queen to sail the ocean waves on the Royal Yacht Britannia. He also examines the plans for nuclear retaliation.

The decision to launch Britain’s nuclear weapons would be taken by the Prime Minister, in keeping with all other military actions this is a prerogative power exercised by the PM on behalf of the Queen. There was a complex series of arrangements regarding how the decision to launch a nuclear attack would be carried from the Prime Minister to Britain’s nuclear forces, which were first stationed at air bases in Lincolnshire, and since 1969 on submarines. There were also arrangements as to who would make this decision in the event of the Prime Minister being taken out in the first wave of a nuclear attack. Hennessy, however, asks a question for which they had clearly not planned:

What if a Prime Minister went bananas… at a period of high international tension and authorised the release of the British nuclear weapon and the military advisers concerned, and those small groups of civil servants who were involved as well, realised that the Prime Minister was crackers – what would happen?

Hennessy puts this question to a number of the individuals who would have been involved if such as scenario had taken place. Firstly, to Sir Frank Cooper, formerly the Permanent Secretary in the Ministry of Defence (the highest Civil Servant in that Department). Cooper replied that:

Well the key word is ‘authorised’. The Prime Minister can only authorise the use of force or the use of nuclear weapons or anything of that kind; he cannot give an order. The only legitimate orders can be given by commissioned officers of Her Majesty’s Forces. And this is a fine distinction but an important one.

Cooper went on to state that in the scenario presented by Hennessy the Chief of Defence Staff would argue with the Prime Minister and ultimately refuse to give the order to launch, although at this point he added the PM would probably sack him and appoint a more pliant officer. But the important thing to remember is that the armed forces are servants of the Crown and not the Government, and can be authorised but not ordered to do things by the Prime Minister. Cooper concluded:

…this distinction between authorisation and the power to give orders is a very important one… this is where you are into the royal prerogative basically. And , you know, there are many, many cases where the royal prerogative actually plays a very useful part in life and if you didn’t have it you would need a written constitution.

Hennessy put the same question to Sir Michael Quinlan a later Permanent Secretary in the MoD. Quinlan responded that in his view Cooper’s response was somewhat over elaborate. He stated:

I think the reality is that the Queen is indeed the ultimate authority. In all practical terms the Prime Minister is. And if the Prime Minister did something which… was plainly lunatic, plainly unjustifiable militarily… I think that the Chief of Defence Staff or anyone else in the command chain like the Commander-in-Chief of Naval Forces which ultimately would deliver it, would have to take their own personal responsibility… [and] not do it. But I don’t think they would found themselves on some elaborate theory of the constitution…

The key figure in all of this would be the Chief of Defence Staff, the most senior military person in the country, and the individual who would have to put his codes alongside those of the PM to launch a nuclear strike and who would have to give the order once authorised to do so by the PM. So Hennessy also asked Sir Charles Guthrie, former Chief of Defence Staff, about this issue. Guthrie replied:

I think the Chief of Defence Staff, if he really did think the Prime Minister had gone mad, would make quite sure that the order was not obeyed. And I think that you have to remember that actually Prime Ministers, they give direction – they tell the Chief of Defence Staff what they want – but it’s not Prime Ministers who actually tell a sailor to press a button in the middle of the Atlantic… The Prime Minister could not directly deal with a boat which was at sea… But if I thought the Prime Minister was mad, of course I wouldn’t [pass on his directive].

This is all very interesting, and if you want to read more you should look at Hennessy’s book. But my real point comes from Hennessy’s summing up of this episode in which he claims that in asking this question and recording the various responses, he, Peter Hennessy, has in fact created a part of the British constitution. You can make of that what you will, but it does serve to illustrate a number of features of the British constitution: the absence of a written code; the importance of royal prerogative; the idea that the constitution is pragmatic, it is what happens in any given circumstance; and the claims of authoritative opinion. This final quote is Hennessy himself.

The British constitution abhors writing things down. But with the transcripts of the Cooper, Quinlan and Guthrie testimony, do we now have just that for the Prime Ministers-going-barmy contingency? I think we do. I certainly hope we do. For the prime duty of this part of the human button is to be the ultimate human safeguard should circumstances require.

Hennessy’s claim to have uncovered, and indeed written, part of the British constitution in his book may seem a little self-aggrandising, which indeed it is. However, Hennessy was recently appointed as a crossbench Peer in the House of Lords and sits on the House of Lords Constitution Committee which considers these things, so he has in a very real sense become part of the Constitution.

Posted in Uncategorized | Tagged , , | Comments Off on Peter Hennessy and the writing down of the British Constitution

Crowdsourcing a written constitution

Neatly timed to coincide with the start of a new academic year, when up and down the country students of law and politics will be discussing the relative merits of a written constitution, the London School of Economics Institute of Public Affairs today launched a project designed to crowdsource the content of a written constitution for the UK. Through a website and a range of social media including Twitter and Facebook, the project aims to stimulate debate about what values should be enshrined in a British constitution and what principles should underpin it, and seek comments and suggestions from the public. The aim is to draft a document to be unveiled to coincide with the 800 anniversary of the signing of the Magna Carta in 2015.

Posted in Uncategorized | Tagged | Comments Off on Crowdsourcing a written constitution

Last preserve of the ‘establishment’? Who are the Privy Council?

This week the Privy Council will make a decision about the form of press regulation to be introduced following the Leveson Inquiry, but what exactly is this mystical body which is being invoked to solves the nation’s problems?

The Privy Council is a constitutional anomaly and in some respects a bizarre throwback to an earlier age. One of the oldest institutions of the British constitution, the Privy Council emerged in the 13th century as a group of advisors to the monarch, and probably reached the height of its power under the Tudors. It spawned the older Whitehall departments, which began life as boards of the Privy Council, and also the Cabinet which emerged in the seventeenth century as the inner group of Privy Counsellors who held the trust of, and influence over, both  the Monarch and Parliament. The powers of the Privy Council have been in decline since the 19th century when the Cabinet emerged as the principal decision-making body, but it does retain some decision-making functions mainly relating to the nine hundred or so bodies which operate under a Royal Charter, these include universities, professional bodies and cities. The Privy Council can also play a role in the passage of delegated legislation, laws which Ministers are empowered to make without reference to parliament, and makes decisions on matters relating to the prerogative powers which may be exercised by the government on behalf of the Crown without the need for legislation. Decisions made by the Privy Council have the force of law and are known as Orders in Council.

The Privy Council also retains a Judicial Committee which is the final court of appeal for British overseas territories and those Commonwealth countries which have retained the right to appeal to the UK judicial system. The Judicial Committee consists of Supreme Court Justices and some senior Commonwealth Judges and meets in the Supreme Court Building in Parliament Square.

There are currently over six hundred Privy Counsellors, making it almost as large as the House of Commons. Membership comprises some of the most prominent, and also some of the most obscure, individuals in British public life, those who in previous age would have been referred to simply as ‘the establishment’. Member are appointed for life and include all past and current Cabinet Ministers and past and current leaders of the main Opposition Parties. Ministers who are not members of the Cabinet may also be made Privy Counsellors. Aside from political appointees the membership includes Archbishops, some senior judges and other notable public figures. Recent appointments have included the former Times journalist Peter Riddell, and the academics Lawrence Freedman and Martin Gilbert who sat on the Iraq war inquiry. The head of the Privy Council is the President of the Council, a post currently held by Nick Clegg. Members of the Privy Council are denoted by the title Right Honourable.

Although for most, membership is simply a titular honour, former Prime Minister, John Major, observed that amongst MPs membership is ‘coveted more than any other recognition in the Commons’. In one notable example, Alan Clark, whose published diaries culminate with a detailed account of his induction, appears to have spent much of his Ministerial career in pursuit of elevation to the Privy Council.

In addition to revealing the importance which some attach to the trappings of office, the publication of a succession of diaries and memoirs by former Cabinet Ministers has also breached the long held convention that discussions held in Privy Council meetings would not be made public. That convention was dramatically breached in 1976 when the Labour MP, Richard Crossman, published the diaries of his time as Lord President of the Council from 1966 to 1968 in which he recounted his regular meetings with the Queen, the mundane nature of Privy Council business and his irritation that government Ministers occasionally had to travel as far as Sandringham and Balmoral for Privy Council meetings. A number of Ministers have followed Crossman’s lead although few have been quite as candid in criticising the system (see for example, the diaries of Alan Clark and David Blunkett). The following extract from the memoirs of former Labour Cabinet Minister, Clare Short, offers an entertaining recent insight into the organisation and nature of Privy Council meetings:

I took my turn undertaking Privy Council duties. The system is that there is a rota for attendance at Privy Council meetings. The quota is about eight and you have to attend every few months. You stand in line while the Queen reads through and agrees legislation, charters of universities and all sorts of other things she has to approve. Once, when I had been told I was essential for a quorum, I found myself very tight for time. We drove at speed to the palace and I rushed up the stairs, causing a commotion as I entered because the meeting had already started. I apologised and the Queen was very gracious and the proceeded with the business. After a couple of minutes, my bleep went off and I caused another kerfuffle as I retrieved it and turned it off. At the end of the meeting, the Queen had a word with each of us, as she does, and said to me with a twinkle in her eye, ‘Well, my dear, I hope it wasn’t anyone important.’ (C. Short, An Honourable Deception, p.63).

A number of Privy Counsellors have also described, sometimes in excruciating detail, the process of being sworn in to the Privy Council. Senior politicians have written with a mixture of bemusement and respect about the whole process, noting in particular the precise attention to detail insisted upon by the Clerk of the Council who is in the habit of arranging a rehearsal beforehand to clarify such matters as how to kiss the Queen’s hand. John Major described it as ‘a very jolly affair’, whilst Paddy Ashdown found the whole process ‘faintly irksome’, and Nigel Lawson described the ceremony ‘as brief as it is bizarre, requiring the recipient to progress to the monarch by a complex mixture of bowing, walking, and kneeling at specified intervals’. New members are required to swear an oath of loyalty in front of the Queen. Despite the bizarre ceremony and archaic language, the Privy Council oath has real substance. It is to some extent, an older and more powerful version of the Official Secrets Act. The wording of the centuries old oath was secret until recently, although it is now, perhaps predictably, reproduced in full on the Privy Council website.

Despite its vast and august membership much of the day to day work of the Privy Council is administrative, relating to the work of chartered bodies, and is now carried out by a secretariat rather than the Privy Council itself. Members of the government do take part in the work of the Privy Council but even then few attend meetings of the Council, in which three members constitute a quorum, and as is illustrated in the extract from Short’s memoirs above, their presence is largely to witness the rubber-stamping of decisions made elsewhere.

In the case of this week’s decision about the granting of a Royal Charter to a new press regulatory body, this is being made by a sub-committee of the Privy Council which is comprised of six MPs and two members of the House of Lords, almost all of whom are also current Cabinet Ministers. The committee is co-chaired by the Liberal Democrat Danny Alexander and the Conservative Maria Miller. The Prime Minister’s decision to introduce press regulation by Royal Charter avoided the need to introduce regulation through legislation (the preferred option of many of the alleged victims of press intrusion), effectively preventing a difficult parliamentary debate and a rough-ride in the press. What is slightly different about the current situation is that bodies representing the press have thrown the cat amongst the constitutional pigeons by tabling an alternative charter,  which has in effect forced the Privy Council to make a decision. There has been much discussion this week about the detailed and careful discussions taking place within the Privy Council, overlaid at times with a kind of mystical significance, but the notion that this committee of Government Ministers will arrive at a decision which does not reflect the preferred option of the Government is unlikely to say the least.

 

Posted in Uncategorized | Tagged , , , , | 1 Comment