News

Now We’re Talking: About The Scottish Referendum - Aidan O'Neill QC - Monday 16th January 2012


scottish_parliament.jpg

 

In an article originally posted on the UK Supreme Court Blog this month, Aidan O'Neill QC discussed the legal issues surrounding a referendum on Scottish Independence:

In a post on the UKSC blog in November of last year I suggested that it would be worthwhile talking about the proposed referendum on Scottish independence which Scotland’s First Minister has pledged to hold sometime in the lifetime of the current Scottish Parliament, most recently suggesting that it may be held in Autumn 2014.

I raised the issue in that post as to whether or not it was within the legislative competence of the Scottish Parliament to organise a referendum concerning the dissolution of the United Kingdom. Para 1 of Sch 5 to the Scotland Act 1998 reserves to Westminster the following aspects of the constitution, among others “(a) the Crown including succession to the Crown and a regency” and “(b) the Union of the Kingdoms of Scotland and England”.

 

Para 2 of Sch 4 to the 1998 Act states that “an act of the Scottish Parliament cannot modify or confer power by subordinate legislation to modify the law on reserved matters” and s 29(2)(b) of the Act says that it is outside the legislative competence of the Scottish Parliament to make a law which “relates to reserved matters”. S 54(3) of the 1998 Act provides that it is outside the “devolved competence” of the Scottish Ministers to exercise any of their functions in any way which would be outside the legislative competence of the Scottish Parliament.

I also noted that when promoting the Scotland Bill through the House of Lords in 1998, Lord Sewell stated that it was the UK Government’s understanding and intention that these provisions would prevent the Scottish Parliament from legislating unilaterally to provide for any independence referendum.  And in promoting the Scotland Bill before the House of Commons, the then Secretary of State for Scotland Donald Dewar MP said in response to three direct questions from MPs as to whether or not the Scottish Parliament of itself could initiate a referendum on independence that:

“It is clear that constitutional change–the political bones of the parliamentary system and any alteration to that system–is a reserved matter. That would obviously include any change or any preparations for change ….A referendum that purported to pave the way for something that was ultra vires is itself ultra vires . . . [M]atters relating to reserved matters are also reserved. It would not be competent for the Scottish Parliament to spend money on such a matter in those circumstances.”

The current SNP led Scottish administration has claimed that it would nonetheless be lawful for the Scottish Parliament to make provision for an “advisory” referendum on independence which was not “legally binding” but which would, it is said, give the Scottish government a political mandate to open “independence negotiations” with the UK Government. No formal legal advice to this effect has been published by the Scottish Government. Instead they have made reference to a collection of sound-bites from a variety of legal academics culled mainly from various newspapers. But the argument that the devolved authorities in Scotland have power to organise a non-binding referendum which relates to reserved matters, (but not a binding one) would seem to be a difficult one to sustain before a court in the face of any challenge to the legality of such provision by the Scottish Parliament for the following reasons, among others:

(i)  given the principle that a delegated authority cannot itself further delegate power or fetter the discretion statutorily granted to it, no referendum ever organised by the Scottish Parliament could ever said to be “binding” on it, so the purported distinction between “binding” and “non-binding” referendums is meaningless;

(ii) neither the Scottish Parliament or the Scottish Ministers has any power to alter the terms of (and limitations imposed by) the Scotland Act 1998 itself (see paragraph 4 of Sch 4 to the Act). And no referendum organised by the devolved authorities could ever bring it within their powers to make any provision relating to the dissolution of the Union of Scotland and England. Making provision to consult the electorate in even a “non-binding” referendum on a legal issue which the (devolved) authority has no power to effect (or affect) may therefore be challenged in court as an “abuse of power”. Any expenditure of Scottish public monies by the Scottish devolved authorities in organising and holding any referendum could potentially be subject to challenge before the courts as unlawful;

(iii) the claim that the devolved authorities in Scotland might be able to hold any sort of referendum concerning Scottish independence runs directly contrary to the interpretation given to the relevant provisions of the Scotland Bill by the UK Government when promoting the measure through Parliament.

There is no doubt, however, that the UK Parliament has the power to make arrangements for referendums anywhere within the UK on such issues as it wishes to consult the people on. The UK Parliament may therefore itself hold a UK dissolution/Scottish independence referendum or confer, on such conditions as it consider proper, power on the Scottish Parliament to make provision for such a referendum (see s 30 SA).

In a statement to the UK Parliament on 10 January 2011 Michael Moore MP, the Secretary of State for Scotland, stated that it remains the view of the current UK Government – consistently with the position taken by Donald Dewar MP and Lord Sewel in 1998 – that the Scottish devolved authorities had no power to legislate for an independence referendum, since its purpose and intended effect would ultimately be to seek to achieve Scottish independence. The UK Government rejects the claim that one could distinguish in law between a binding and non-binding referendum for these purposes. The UK Government has therefore decided that – following a public consultation process as to the timing and terms of and process for any such referendum – to provide the necessary powers to the devolved authorities for such a referendum to be held by them in Scotland.

As regards the political/moral legitimacy of Westminster so intervening in “internal” Scottish affairs, it may be noted that in the 2010 General elections to the UK Parliament, of the 59 MPs elected from Scotland, only 6 were from the Scottish Nationalist Party, with the remaining 53 of Scotland’s MPs being made up of parties (Labour, Conservative and Liberal Democrats) all committed to the maintenance of the union between Scotland and England. MPs from Scottish constituencies representing unionist parties in the Westminster Parliament therefore claim to have a political and democratic mandate from the people of Scotland on this matter, just as much as (if not more than) the nationalist MSPs in the Scottish Parliament.

It might also be noted that were Scotland to have been independent at the time of the 2010 UK General Election (and votes were otherwise cast in the same way in the rest of the UK) then the House of Commons would have been made up 591 MPs, and 305 seats would be held by the Conservative Party, 217 by Labour, and 51 by the Liberal Democrats. This would have given the Conservative Party an absolute majority in the House of Commons and hence have obviated the need for any coalition government. It seems clear, therefore, that the ending of the union between Scotland and England could well have some interesting and continuing effects on the post-independence politics and governance of the rest of the United Kingdom. The issue of Scottish independence should accordingly not be disregarded or dismissed as a matter purely of internal Scottish interest.

Appendix (In response to comments on the original UKSC blog post)

Compatibility with the decision in AXA

On abuse/deliberate misuse of power as a ground of review distinct from irrationality

The decision of the UKSC in AXA leaves open the possibility of a common law challenge based on deliberate misuse or abuse of powers, as distinct from an unreasonableness challenge to the result or effect of legislation.

The First Division stated in AXA [2011] CSIH 31 at para 89:

“[89] That does not mean, in our view, that there are no circumstances in which the Court of Session could strike down on common law grounds legislation of the Scottish Parliament.   The three categories identified by Lord Diplock in Council of the Civil Service Unions v Minister for the Civil Service (essentially for review of administrative action) are not exhaustive. A fourth category (‘‘proportionality’’) was contemplated.

In the Nottinghamshire case Lord Scarman spoke also of ‘‘bad faith’’ and ‘‘improper motive’’. These latter grounds are not, in our view, truly aspects of irrationality but of deliberate misuse of power.     The restriction which Lord Scarman formulated (and in which all the other members of the Appellate Committee concurred) was endorsed by Lord Bridge (and all his colleagues) in Hammersmith. If a case were to be made out on such grounds the court might well hold itself entitled to intervene.

Likewise, if the Scottish Parliament were to take an exceptional measure of the kind contemplated by Lord Steyn in R (on the application of Jackson) such as a purported abrogation of the citizen’s right to challenge unlawful executive action by judicial review we do not exclude the possibility that any such enactment would be challengeable at common law.”

On appeal, Lord Hope stated in AXA [2011] UKSC 46 at para 52:

“52 As for the appellants’  common law case, I would hold, in agreement with the judges in the Inner House, that Acts of the Scottish Parliament are not subject to judicial review at common law on the grounds of irrationality, unreasonableness or arbitrariness.”

Lord Reed:

“142 Judicial review under the common law is based upon an understanding of the respective constitutional responsibilities of public authorities and the courts. The constitutional function of the courts in the field of public law is to ensure, so far as they can, that public authorities respect the rule of law. The courts therefore have the responsibility of ensuring that the public authority in question does not misuse its powers or exceed their limits.

. . .

169.   A public authority can violate the rule of law without infringing the rights of any individual: if, for example, the duty which it fails to perform is not owed to any specific person, or the powers which it exceeds do not trespass upon property or other private rights.

170. … [W]here the excess or misuse of power affects the public generally, insistence upon a particular interest could prevent the matter being brought before the court, and that in turn might disable the court from performing its function to protect the rule of law.”

On the Scottish Parliament as a delegated authority

Lord Reed at 152:

“152 The principle of legality means not only that [the UK] Parliament cannot itself override fundamental rights or the rule of law by general or ambiguous words, but also that it cannot confer on another body, by general or ambiguous words, the power to do so.”

Lord Reed in AXA at para 153:

“[The UK] Parliament cannot be taken to have intended to establish a body [in the Scottish Parliament] which was free to abrogate fundamental rights or to violate the rule of law.”

Conclusion

Respect for the rule of law might be said to encompass not only a requirement not to act beyond the limits of powers conferred, but also requires a body exercise those powers which have been conferred on it only for and within the purpose or purposes for which these powers have been conferred.    In Eba v Advocate General for Scotland (Public Law Project intervening) [2011]UKSC 29 Lord Hope stated para 8:

“[T]he rule of law . . . is the basis on which the entire system of judicial review rests. Wherever there is an excess or abuse of power or jurisdiction which has been conferred on a decision-maker, the Court of Session has the power to correct it: West v Secretary of State for Scotland, 1992 SC 385, 395. This favours an unrestricted access to the process of judicial review where no other remedy is available.”

It is difficult to identify the lawful purpose which would legally justify any provision being made by the Scottish Parliament for even a “non-advisory” referendum on Scottish independence, given that the constituting statute under which the Scottish Parliament operates is unequivocal that the devolved authorities simply have no power as regards of the union of the kingdoms of Scotland and England.

If there is no lawful purpose in such provision, then the exercise of the power to organise such a referendum may properly be characterised as an unlawful abuse of power.

Aidan O'Neill QC is a leading EU lawyer.  He is an Honorary Fellow in the School of Law, University of Edinburgh.


blog comments powered by Disqus

More News


portcullis_small_1_recurrent_summary_article_main.JPG

Meeting of the APPG on the Constitution: A referendum on Scottish independence

Tue, 28th February 2012

The next meeting of the APPG on the Constitution will take place on Tuesday 28th February at 7pm in Committee Room 3.



BULLETIN.jpg

Regular update on Bills before Parliament, reports and interesting news.

Mon, 20th February 2012

Bulletin for 20th February 2012



Constitution_Cartoon.jpg

Constitution Society Seminar: Improving the Process of Constitutional Change

Mon, 6th February 2012

A summary of The Constitution Society's recent seminar exploring routes towards improved processes for constitutional change.



Running_man_with_flag.jpg

Judges, Politicians and the Contested Constitution - Aidan O'Neill QC

Thu, 2nd February 2012

An interesting look at the historical roots of modern constitutional law as it effects the issue of Scottish independence.



Tory_Tree.jpg

Would the Conservatives benefit from Scottish independence? - Michael Everett, Researcher, The Constitution Society

Wed, 1st February 2012

Michael Everett looks at the possible effects of Scottish independence on the balance of power between parties in the UK.



Scotland_Flag.jpeg

The Weakest Link - Dr. Matt Qvortrup

Mon, 16th January 2012

The UK government’s legal argument for a binding referendum on Scottish independence runs counter to international and constitutional law - Dr. Matt Qvortrup



unit-sq2.jpg

Summary of the UCL Public Seminar on the Parliamentary Boundaries Review

Thu, 12th January 2012

Answers to some key questions about the methods and effects of the Boundary Review underway.



hol.jpg

House of Lords Grand Committee considers Report on the Process of Constitutional Change

Thu, 8th December 2011

The House of Lords grand committee met yesterday to debate the Constitution Committee's report on the process of constitutional change



id_7232.jpg

Joint Committee on the Draft House of Lords Reform Bill Hears Evidence

Wed, 2nd November 2011

The Joint Committee on the Draft House of Lords Reform Bill met with four academic experts to hear their views on the merits of the Draft Bill.



general.jpg

EU debate leads significant rebellion

Tue, 25th October 2011

A backbench motion debate on Britain’s relationship with the European Union has led to a significant rebellion of government MPs.



cabinet-450.jpg

Cabinet Manual launched

Mon, 24th October 2011

Today the government published the Cabinet Manual, heralding it as 'the ultimate user's guide to government'. It brings together a range of sources and aims to give a descriptive account of the procedural arrangements of the executive.



j0422237.jpg

Debate triggered on the future of Britain's relationship with the EU

Fri, 21st October 2011

With Parliament preparing to follow the call of a public petition to debate the future of Britain’s relationship with the EU, questions about the appropriate role of direct popular influence on the political process have returned to the spotlight.



HRA98.jpg

On whether or not to repeal; a briefing on the debate surrounding the Human Rights Act and a UK Bill of Rights

Tue, 4th October 2011

This week, as senior politicians from both sides of the coalition express differences in opinion regarding the future of the 1998 Human Rights Act and the prospect of a new UK Bill of Rights, we present some of the best recent writing on the issue as well as some useful background information.



uk-parliamentweb-700x487.png

Fixed-term Parliaments Bill gains Royal Assent

Mon, 19th September 2011

After 14 months, and no small amount of controversy, the government's plan to fix the duration of parliamentary terms becomes law.



linlithgowpalace1.jpg

The West Lothian Question: is now is the time to start looking for an answer?

Thu, 15th September 2011

As Harriett Baldwin's Private Member's Bill is defeated at it's Third Reading, the government announces plans to create a commission to find a solution to the long-standing debate.



rsz_yorkshiresw.jpg

The Boundary Commission for England publishes its proposals for revised constituency boundaries to be contested in 2015

Tue, 13th September 2011

As the Boundary Commission for England releases its revised constituency proposals, we look at the implications of its new focus on equal population distribution.



scottish_flag.jpg

Legislation to boost Holyrood’s power reaches the Lords

Thu, 18th August 2011

The Scotland Bill faces its second reading with the Lords' return in September. But does it get to the heart of the devolution debate?



House_of_Lords_1999.jpg

Baroness Royall on House of Lords Reform: The government’s draft bill ducks the crucial constitutional questions.

Tue, 9th August 2011

Shadow Leader of the House of Lords, and contributor to "The end of the peer show?", Baroness Royall sets out her view on House of Lords reform.



Bulletin Archive 3

Thu, 26th January 2012

An archive of all regular bulletins



Sir_John_Baker_2.jpg

Professor John Baker on House of Lords Reform: Appointment or election?

Tue, 9th August 2011

Downing Professor of the Laws of England at the University of Cambridge, and contributor to "The end of the peer show?", Sir John Baker sets out his view on House of Lords reform.



Lords_report.png

Lords committee publishes report on constitutional reform process

Thu, 21st July 2011

The Lords Constitution Select Committee concludes that the current variable treatment of constitutional proposals is unacceptable. It argues that there should be a “clear and consistent process” applied to all cases of “significant constitutional change”.



Title_square.png

The End of the Peer show? Responses to the draft bill on Lords reform

Tue, 19th July 2011

A debate at the LSE this week launched The Constitution Society's publication of a collection of responses to the draft bill on Lords reform from distinguished academics, peers and MPs.



MarkHarper.jpg

Mark Harper - the Government's view on House of Lords Reform

Fri, 22nd July 2011

Minister for Political and Constitutional Reform, and contributor to "The end of the peer show?", Mark Harper sets out the government's view on House of Lords reform.



eu.jpg

Lords demonstrate willingness to counter Government proposals on the EU

Tue, 28th June 2011

The House of Lords significantly amended the European Union Bill during its third reading in the Upper House last week. Peers used this last opportunity to amend the Bill to demonstrate their unwillingness to accept its controversial proposals.



senatorial.jpg

Robin Archer: House of Lords reformers should look to the example of Australia

Mon, 6th June 2011

Dr Robin Archer of the LSE has explained the lessons the UK might learn from examining the history of the Australian Senate. The insights he offered, in an interview with The Constitution Society, are of particular interest in light of the government’s new proposals on Lords reform.



House_of_Lords_Throne_End.jpg

Government Reform Proposals for the House of Lords

Thu, 2nd June 2011

On May 17th the government introduced its House of Lords Reform Draft Bill in the Commons and the Lords. The Draft Bill suggests a move to an 80% elected upper house, with the remaining members appointed by recommendation of the Prime Minister. The new House of Lords would be made up of 300 members, with the 240 elected members sitting for 15-year terms.



no2av.jpg

What does 'no' really mean?

Sat, 7th May 2011

The electorate has resoundingly rejected a proposal to introduce a system of alternative voting. The fall out will be the deferral of electoral reform for another generation and the political manoeuvring which underpinned the referendum is unlikely to have done anything to improve public perception of the integrity of politicians and our political system.



House-of-Lords.jpg

The Constitution Society's Evidence to the Lords Constitution Committee

Wed, 18th May 2011

The Constitution Society’s evidence to the House of Lords Constitution Committee’s inquiry into Constitutional Reform was published on the 13th of May 2011 (link). The Society used agreed principles of Good Government to assess the quality of the legislative process behind the recently enacted Parliamentary Voting Systems and Constituencies Act (which led to May 5th’s referendum).



truss.jpg

Elizabeth Truss MP Calls for More Freeedom for Councils

Fri, 13th May 2011

Elizabeth Truss, Member of Parliament for South West Norfolk, has called for councils to be “more free to take their own decisions”, warning that an excessive concern for equality between local government bodies disempowers British communities. Ms Truss made the case for a stronger localism in Britain during an interview with the Constitution Society.



renwickpic.jpg

Alan Renwick: Referendum offers

Tue, 26th April 2011

Alan Renwick of the University of Reading explores the arguments around the AV referendum.



staff_nicholson_250.jpg

Chris Nicholson: AV would give voters more choice

Mon, 18th April 2011

Chris Nicholson, Chief Executive of the liberal think tank Centre Forum, explains his reasons for supporting a move to the Alternative Vote at the forthcoming referendum.



Neil-Kinnock--006.jpg

Neil Kinnock: FPTP is fundamentally flawed

Tue, 12th April 2011

Lord Kinnock recently spoke to The Constitution Society about his support for AV and his reaction to the negativism of the no campaign in the lead up to the referendum on May 5th. Here we report his thoughts.



ballot_box_amended.jpg

AV or not AV? Resources to help you decide

Wed, 6th April 2011

A collection of resources to help you make up your mind ahead of Thursday's referendum.



hayter_pic.jpg

Baroness Hayter defends First Past the Post

Tue, 5th April 2011

Former Chair of the Labour party Baroness Hayter defends First Past the Post ahead of next month's referendum on the Alternative Vote.



Hainphoto.jpg

Peter Hain “strongly in favour of electoral reform”

Wed, 6th April 2011

Former cabinet minister Peter Hain MP explains why he supports the yes to AV campaign.



ballot_box_.jpg

AV referendum count underway

Fri, 6th May 2011

The AV referendum ballot papers are being counted. We show you the latest figures.



AV_ballot_paper.jpg

AV Briefing Papers: What it is and What the public think

Wed, 13th April 2011

Links to The Constitution Society's Briefing papers on AV. We explain what it is and how it might affect our political system? We also report on our findings when we commissioned YouGov to ask 2000 people what they thought.



briefing_papers_10.JPG

Direct links to briefing papers produced by The Constitution Society.

Mon, 17th January 2011

Direct links to briefing papers produced by The Constitution Society.



parliament_night_2.jpg

The Coalition and the Lords

Fri, 25th March 2011

As more of the Government's legislative programme reaches the Lords, we consider the implications of Coalition for the Upper Chamber.



Wales_campaign_image.jpg

Wales faces vote as UK experiences referendum fever

Tue, 1st March 2011

In the context of Thursday's Welsh vote on broader legislative independence, we consider the genesis and implications of the wave of referendums currently planned for the UK.



polling_station_sign.jpg

Alternative Vote campaign kicks off

Fri, 18th February 2011

Cameron and Clegg have stated their cases for and against AV. The public now has 10 weeks to decide the future of the electoral system.



big_ben.jpg

The AV Bill is finally leaving the Lords, and in what state?

Fri, 11th February 2011

We take stock of the changes made to the Voting System Bill during its epic scrutiny session in the Lords.



parliament_night.jpg

Lords Reform; more predictable in context than in implication?

Mon, 17th January 2011

We assess the progress made in a century of debate on reform of the House of Lords. Are we any closer to knowing what we want from a reformed Upper House and are we sure we know how to achieve it?



target.jpg

Government hits referendum target

Thu, 17th February 2011

Almost seven months after being introduced in the Commons, the Voting Systems Bill has received royal assent in time for the May 5th referendum.



manual.jpg

Uncertain implications of the Cabinet Manual

Tue, 25th January 2011

This month's meeting of the All-Party Parliamentary Group on the Constitution hosted a fascinating discussion on the Cabinet Manual. Despite broad consensus on the potentiality of the document, the merits of its implications could not be agreed.



hands.jpg

Peers reach conclusion of marathon Bill debate

Wed, 2nd February 2011

A promised "package of concessions" at report stage has permitted the Voting System Bill to conclude its marathon committee stage debate in the Lords.



timetable.jpg

The House of Lords; political hostage or bastion of parliamentary scrutiny?

Mon, 31st January 2011

Facing their 17th day of programmed discussion of amendments to the Voting System Bill, the Lords for the first time face a guillotine on debate.



EU_Bill_image.jpg

Continued controversy over EU Bill

Tue, 25th January 2011

The Government yesterday afforded the European Union Bill a further day of debate in the Commons but critics argue it that the Government continues to curtail proper scrutiny.



everest1.jpg

Scaling the Heights of Lords' Reform

Wed, 5th January 2011

The infinite questions on Lords reform left unresolved by a century of debate.



instructions_manual.jpg

The Cabinet Manual; controversy over codification

Tue, 21st December 2010

Following the publication of the Draft Cabinet Manual, the Constitution Society talks to the experts.



black_knight.jpg

Was the Black Knight a member of the House of Lords?

Fri, 17th December 2010

Reform of the House has been on the political agenda for more than a century yet the Lords stands largely unchanged. The Coalition have made the most recent pledge in the line of policy promises but what do we want from reform?



protest.jpg

Tuition fees – the tangible impact of constitutional reform

Fri, 10th December 2010

Notoriously difficult to define, the tangible face of constitutional reform can be glimpsed in the recent debate over tuition fees. The cries of 'unfairness' and 'punishment' reignite the devolution debate amidst a continuing trend towards increasing regional autonomy.



lords.jpg

Government legislation challenged in the Lords

Fri, 3rd December 2010

Will the dramatic pace of the Voting System Bill be slowed as it navigates resistance in the Lords?



crowd.jpg

Coalition urged to put moratorium on Lords appointments

Thu, 25th November 2010

Constitution expert Meg Russell makes powerful plea for Government to reform appointment policy or face "serious damage" to the House.



clock.jpg

Ding dong, the Westminster bells may no longer chime

Fri, 26th November 2010

A group of new MPs have launched a bid to introduce an electronic voting system in the House of Commons.



parliament_night.jpg

The coalition kids are trashing Parliament

Thu, 18th November 2010

Lord Howarth's passionate response to the Parliamentary Voting System and Constituencies Bill is indicative of a broad appetite for continued debate on electoral reform and boundary revision.



simon_hix.JPG

Leading academic lambasts AV

Fri, 19th November 2010

Simon Hix, Professor in the Department of Government at the LSE, has criticised Government proposals to hold a referendum on AV in an interview with reconstitution.org.uk.



lords_2.jpg

Claims of "Hybridity" over Voting Systems Bill

Tue, 16th November 2010

A "lawyer's wheeze" or a serious matter of constitutional principle? A group of peers claimed on Monday 15th November that the Pariamentary Voting System and Constiuencies Bill is technically "hybrid" and as such should undergo a longer process of scrutiny by committee. A subsequent vote in the Lords was narrowly defeated, meaning that the progress of the Bill will not be slowed as anticipated.



map.jpg

Constituency boundaries - joining up the map of reform?

Mon, 8th November 2010

From the perspective of proposals to "reduce and equalise" parliamentary constituencies, we probe the ties between the Government's broader programme for constitutional reform.



harriet_baldwin.JPG

Could Harriett have the Answer to the West Lothian Question?

Mon, 25th October 2010

Harriett Baldwin, Conservative MP for West Worcestershire, speaks to ReConstitution about her private members’ Bill, seeking to find a solution to the issue commonly known as the ‘West Lothian Question’, and the future of constituency boundaries.



new_zealand_parliament.jpg

Political reform: still a choice or new political necessity?

Mon, 1st November 2010

Following a lecture by the former President of the New Zealand Labour Party, we look for lessons to be learnt from their experience of constitutional reform.



poll_image.JPG

71% think independent body should draft referendum question

Wed, 6th October 2010

Results of our specially commissioned YouGov poll on AV and the referendum. 2548 people were asked various questions about their voting intentions and their understanding of voting systems generally. They were also asked to give their reasons; with surprising results.



AV_ballot_paper.jpg

Briefing paper on AV: What is it and how would it affect our voting system?

Fri, 13th August 2010

Although people tend to talk about Alternative Voting as if it is a single concept, there are in fact many different variants on the AV system. Our briefing paper gives a clear explanation of the AV system currently proposed by the Government, together with worked examples.



Parliament_sign.jpg

The unseemly haste to introduce fixed term parliaments

Thu, 16th September 2010

Like the Parliamentary Voting System and Constituencies Bill, the Fixed term Parliaments Bill is being rushed through Parliament, with woefully inadequate time for scrutiny. Yet the Bill contains novel provisions which will have a profound impact on votes of no confidence and dissolution of Parliament - not least the abolition of one of the Queen's prerogative powers. Why the hurry?



poll_image.JPG

Briefing paper on TCS/YouGov poll: public opinion on AV and the referendum.

Thu, 7th October 2010

The Constitution Society (TCS) commissioned YouGov to carry out an on-line poll to gauge public opinion on a broad range of issues around electoral reform and the government’s referendum proposal. 2548 people were asked various questions about their voting intentions and their understanding of voting systems generally. They were also asked to give their reasons. The survey produced some surprising results .



portcullis_small_1.JPG

Archive - APPG on the Constitution

Thu, 21st October 2010

An archive of agendas and resources from previous meetings of the APPG on the Constitution.



money.jpg

AV Referendum Campaign Funding Rules

Fri, 20th August 2010

Following the Electoral Commission's confirmation of funding rules for the AV referendum campaign, we look at how this interesting campaign might evolve, and whether either camp is advantaged from the start.



Yes-No.jpg

The Politics of Electoral Reform

Fri, 30th July 2010

A Bill is currently before Parliament to propose a referendum on electoral reform and boundary changes. To date, none of the main political parties has given reasons why a change from our First Past the Post system of electing members to the House of Commons ought to be changed to a system of Alternative Voting. We examine the implications of a change in voting system and look at some of the, perhaps unforeseen, consequences of the changes which the Bill proposes.



Advisers.jpg

Looking for that special someone: the enduring relationship between politicians and special advisers

Thu, 29th July 2010

We take a look at special advisers, often thought of as a recent phenomenon. However closer examination reveals that special advisers have been around as long as politicians.



parliament_square_sign.jpg

Nick Clegg under scrutiny by the new Select Committee on Political and Constitutional Reform

Sat, 17th July 2010

On 15th July 2010 Nick Clegg, the Deputy Prime Minister became the first witness to the newly-formed Select Committee on Political and Constitutional Reform. The committee cross-examined Mr Clegg both on the timing and content of reform proposals.



road_works_parliament.png

House of Lords reform: the Lords are speaking - is anyone listening?

Sun, 11th July 2010

The first weighty debate of proposals to reform the House of Lords took place on 29th June 2010. Though ignored in the media, the debate included some of the most cogently reasoned arguments for and against a move from an appointed to an elected House, with a majority of the 65 peers participating in the debate expressing concern at the prospect of the creation of 'a pale imitation of the House of Commons'.



manual_2.jpg

Experts join calls for joined-up thinking in the scramble for constitutional reform

Sat, 24th July 2010

In a further valuable contribution to the burgeoning debate on constitutional reform in general, and the codification of the British constitution in particular, a group of constitutional experts led by Stephen Hockman QC and Professor Vernon Bogdanor have called for a holistic approach to the constitution. In a paper published by JUSTICE, the group analyses the questions which need resolution before any moves can be made towards the creation of a codified constitution.



works_ahead.png

Do we need a written constitution?

Fri, 2nd July 2010

Prompted by the recent publication of a book on the subject by Richard Gordon QC, the PR consultancy SPADA recently sponsored a debate on whether the UK now needs a written constitution. Read more, or watch a video of the debate in full.



Churchill_and_the_house.jpg

The Speaker speaks of his plans for the future

Wed, 16th June 2010

The Rt Hon John Bercow, Speaker of the House of Commons outlined his vision of a revitalised chamber of the House of Commons. The new Parliament has seen an encouraging number of new faces in the House taking an active interest in the business of the Chamber. But what will it take to sustain that enthusiasm and reinvigorate debate in the House?



twisted_flag.jpg

Fear and Lothian in Westminster. The English question is not going to go away

Mon, 7th June 2010

Both the Scottish National Party and Plaid Cymru have stated that they intend to exploit the hung parliament to their own advantage, once again putting the spotlight on the 'English question' - that Scottish and Welsh MPs may vote in Westminster on issues that affect only England, whilst English MPs have no say in relation to the deliberations of the Scottish parliament or the Welsh assembly. We look at whether there will ever be a solution to this problem.



I_should_be_in_charge.png

British politics hits a purple patch. A look at calls for electoral reform

Sat, 29th May 2010

Amid the calls for electoral reform and the coalition government's promise to put the Alternative Voting system to a referendum, we look at what difference a change to the voting system would make. Is democracy in the voting or the counting?



European_commission_buildling.jpg

EU Foreign Policy: to boldly go where none has gone before?

Tue, 18th May 2010

The European Union has been criticised in the past for failing to develop a more effective foreign policy, but the External Action Service is supposed to bring new cohesion and coherence to this area of European cooperation. However, the new High Representative for Foreign Affairs, Baroness Ashton, has already run into opposition to her plans and, although a compromise has been struck, the road ahead scarcely looks any easier.



westminster.jpg

A plea for extra time: PR should not be a political football

Wed, 12th May 2010

The negotiations leading to the formation of the new coalition government have turned, in part, on the question of electoral reform. A matter of such constitutional importance should, it is argued, form part of a wider review of the constitution and should not be used merely as a political bargaining chip. Will sufficient time be given to consider the implications of change before reforms are pushed through?



manual_2.jpg

Should civil servants have the tyranny of the first draft? Peter Lloyd considers the Cabinet Secretary’s “Cabinet Manual”

Thu, 6th May 2010

Peter Lloyd questions the provenance of the recently disclosed 'Cabinet Manual'. Amid suggestions that the manual might form the basis of a written constitution, he questions whether it should be for a civil servant to generate the first draft of such a fundamental document.



GARLAND_cartoon.jpg

Sound bites vs. quiet reflection: Better Government requires a considered approach

Sat, 1st May 2010

In a letter published in the Financial Times this week, members of The Constitution Society and the Better Government Initiative outline four basic principles of good government that could improve the legislative process. The principles are difficult to fault, and could be implemented without legislation, but the question will remain whether there is any incentive for politicians to change the way that they behave.



Natimage001.jpg

Crisis, What crisis?

Tue, 13th April 2010

At a debate of the Society of Cogers on 19th April 2010, Nat le Roux, Chairman of the Trustees of the Constitution Society, argued that our problem may not lie with our constitution itself, but rather with the conduct of our politicians. He suggested that the single biggest problem of contemporary democracy - is that all politicians are terrified of losing power, because the lesson of the last 30 years is that once you’ve lost power you don’t get it back for a generation.



green_paper.jpg

Rip it up and start again: the only way to deal with the House of Lords?

Mon, 26th April 2010

In an article published for the first time on the ReConstitution website, Professor Dawn Oliver argues that we should resist political pressure to reform the House of Lords by making it an elected body. She proposes abolishing the House of Lords and starting from scratch by the creation of a wholly appointed Commission for Executive Scrutiny, with proposals which chime with views expressed by Lord Bingham.



3619217732_67e687ffbc_o.jpeg

Chief Civil Servant advises Brown to stay put in event of hung parliament

Thu, 4th March 2010

The head of the Civil Service is warning Gordon Brown not to leave Number 10 if it is unclear who has won the upcoming election. Sir Gus O’Donnell told MPs that it is “the Prime Minister’s duty not to resign” until a successor can be found.



polling_station_and_bin.jpg

Are new faces enough?

Wed, 21st April 2010

Will the problems with Parliament be solved by the retirement of many of the worst expenses offenders and an influx of new MPs? There is a perceptible mood for change amongst voters, but will altering some of the personnel be enough to restore confidence in both Parliament and the ‘constitution’ of the United Kingdom?



houses_of_parliament_london.jpg

Reform sidelined as 'wash up' commences

Wed, 7th April 2010

Campaigners are expressing their dismay, as the government’s legal commitment to hold a referendum on reforming the electoral system looks set to be scrapped as part of the ‘wash up’.



Anti-corruption campaigner brands 'wash up' a stitch up

Mon, 29th March 2010

Legendary anti-corruption campaigner Martin Bell is spearheading a campaign to make the ‘wash up’ more transparent. Mr Bell is criticizing the process, which takes place during the final days of a parliament to try and get as many of the remaining bills finished as possible, as a “stitch-up by and for the main political parties”.



jack_straw.jpg

Jack Straw attacks Cameron's plans to reduce number of MPs

Wed, 17th March 2010

A senior government minster has laid into David Cameron’s plans to reduce the number of MPs should he get into power.



eady1-755668.jpeg

Libel judge defends privacy law

Mon, 15th March 2010

The controversial libel judge at the centre of a storm over the development of privacy law in the UK has hit back at his tabloid critics. Justice Eady, who rose to notoriety after punishing the News of the World for publishing intimate photos of Formula 1 boss Max Mosely’s private life, accused tabloids of having a vested interest in stunting privacy for financial gain.



margot.jpeg

Senior Tory calls for Lords Reform

Wed, 10th March 2010

A senior Tory is expressing her support for an elected House of Lords. Margot James, a vice-chairwoman of the Conservative party, made the announcement during an interview with Reconstitution where she claimed the current system was “out of kilter”.



Dr_Meg_Russell.jpeg

Expert calls for Government to follow through on reform

Mon, 8th March 2010

Academics are calling for “immediate assurances” from the government that it will implement the recently agreed Wright reforms before the end of this parliament. Dr Meg Russell of the UCL Constitution Unit warned them “this is the timetable the Commons voted for and party leaders must work together to honour that.”



FileAEngel_UKMP.jpeg

Controversy over whether reform goes far enough

Tue, 23rd February 2010

The parliamentary reform movement is split over whether the proposed Wright Reforms go far enough.



Better Government Initiative

Mon, 1st February 2010

Better Government Initiative launches major report.