Introduction to AS: constitutional change

Today the House of Lords gave their assent to Coalition plans to bring the UK into line with much of the western world by fixing the date for national elections.

According to the BBC:

“The Fixed-Term Parliaments Bill finally cleared the House of Lords when peers, who had twice blocked the plan, accepted a compromise proposal.

They wanted the law to be renewed after each election but ministers said that meant allowing fixed terms to be switched on “like a light switch”.

Peers voted by 188 to 173 to accept a plan for a review in 2020.

Parliaments are currently limited to a maximum of five years, but the prime minister is free to call a general election at any time.

The government has argued that fixed terms would eliminate the power of the executive to call elections when it was politically convenient - but their choice of a five-year, rather than a four-year term has attracted some criticism.

And some peers had argued that the coalition did not have a mandate to “bind” future parliaments.

They put forward plans that would in effect have required each new parliament to decide whether it wanted a fixed term.

Peers had twice backed a “sunset” provision that would have given both the Commons and the Lords the chance to choose whether to renew the legislation after each general election.

Crossbench peer Lord Butler urged peers to stand firm and said the government’s offer, to set up a review in 2020, was an “insult”. And fellow crossbencher Lord Pannick said: “The proposal is not so much kicking the issue into the long grass as burying it in a time capsule.”

But peers voted, by a majority of just 15, to back the government.

Advocate General Lord Wallace said any future government could choose to repeal the fixed-term legislation - but that would be the “subject of full parliamentary scrutiny as this Bill has been”.

“By contrast the sunset amendments would switch fixed terms on and off like a light switch. Parliaments would default to non-fixed terms if a simple resolution fails to be tabled or if the two houses cannot agree on the matter.”

The bill will now be sent for Royal Assent.

Under the bill an election could still be triggered before the end of a five-year term if a motion of no confidence was passed in the government and no alternative administration could be formed, or if at least two-thirds of MPs approved calls for an early election.”

There is a very good feature by the BBC pre today’s announcement here

Neil McNaughton wrote an excellent article on the for and against fixed term parliaments for t2u’s first the post online magazine.

I wonder whether what happened today supports or weakens the debate against a codified constiution. See below…

The following can be regarded as arguments against codification of Britain’s constitution

Professor Anthony King in “The British Constitution” lays out a number of persuasive reasons against those who wish to “modernise” our constitution and these form the basis of the case outlined below.

• First, there is no need. Britain has not undergone the kind of constitutional crises that have precipitated the drafting of written constitutions in countries like the Germany and Japan after WWII. The only seismic shock that might act as a catalyst for a written constitution is if Scotland became independent.

• Most inhabitants of these islands are broadly satisfied that the nature of government is legitimate. It may not be perfect, but which country can claim that its system is? Holding a constitutional convention is bound to widen divisions, not heal them, as was the case following the meeting in Philadelphia in 1787.

• The debate about the need for radical constitutional change is driven by academics rather than the people. Opinion polls might show that the latter are overwhelmingly in favour of a written constitution, but the issue is of very low salience. Voters would much prefer their politicians get on with the business of improving schools or hospitals, remedying unemployment, etc.

• Consensus about what should be included in a written constitution seems remote given the inability of our political classes to agree on how they should be funded, or what remuneration MPs should receive. As if to underline this point, Parliament has again delayed difficult decisions about what to do with the House of Lords – it is now nearly a century since second chamber was first reformed, and nearly a decade since the vast majority of hereditaries were ejected. How long would arguments about the constitution drag on for?

• Even if the convention managed to come to agreement about the constitution’s contents, a referendum on the issue is unlikely to motivate large numbers of the electorate to visit the ballot box. A low turnout would surely undermine the whole process.

• Even if codification were secured it is as likely that the new British constitution would be worse than the status quo ante than better. The framers of the US constitution contained amongst them a large number of individuals with direct experience of applying their intellect to constitutional matters. Without men and women of comparable stature in the UK, would actual progress with our constitution be made?

• The UK constitution has been modified enormously since the 1960s. Even if we consider solely the changes that have taken place since New Labour took power in 1997, it is clear that it is time to take stock and consider their impact.

• If fine minds do want to consider constitutional matters, there is plenty to be getting on with in attempting to address issues such as how the devolved institutions should finance themselves, or whether there should be an agreed convention on what issues should be put to a national referendum.

• Codification is not a panacea. First of all, what needs to be included? Many entrenched provisions become outdated or irrelevant. On the first, witness the problems caused by the USA’s 2nd Amendment which guarantees the right to bear arms. On the second, it is a little known fact that the Icelandic constitution includes a clause which states that its president must live in or near Reykjavik! The conduct of elections barely receives a mention in most codified constitutions, so should the UK include it?