Things they won’t do with the British Constitution

A stonking majority does not give power to abolish democracy because even the most loyal MPs will not contemplate that.  Margaret Thatcher herself, for all her command, was restrained on many occasions by the thought ‘I could never get this through the House of Commons’. The opposition may tweet madly, but some things are fundamental:  the majority is, after all, not of radicals but of Conservatives.

Forget grand and mendacious declarations attempting to entrench the concerns of the moment: the British constitution just gets on with it: we consider these truths to be self-evident, so there’s no point writing them down.

I must add before I proceed a reminder of a caution given by the greatest of philosophers:

Therefore, where there is already erected a Soveraign Power, there can be no other Representative of the same people, but onely to certain particular ends, by the Soveraign limited. For that were to erect two Soveraigns; and every man to have his person represented by two Actors, that by opposing one another, must needs divide that Power, which (if men will live in Peace) is indivisible, and thereby reduce the Multitude into the condition of Warre, contrary to the end for which all Soveraignty is instituted.

Some countries do very interesting things in their constitutions, which fit the conservative mindset and might work here too, but they will not be done. As an exercise, I looked at some randomly selected.

A special majority for raising taxes

They have this in a number of American states. Whether it actually reduces taxes, I cannot say, but the good motive is there. They went even further in Georgia as part of Mikheil Saakashvili’s reforms.  He may have ended his presidency in the recriminations of the Russian war and flight into political exile, but in his time, Saakashvili achieved wonders where no one thought he could, ending corruption and boosting the land into economic growth, until the Russians came.  One of his reforms was to add to the constitution that any increase in tax rates needs approval in a referendum. That was later repealed, and was impractical. However requiring a special majority of the Commons is tempting.

If they ever thought about it, on the same principle you could argue that there should be a special majority for creating a new criminal offence, but a simple majority for repealing one. That speaks of a concern for freedom. It won’t be done.

An obligatory balanced budget

Another American innovation: that the Government may not spend more than it earns. That is everyday life for a household economy, but considered outlandish in the national economy.

I can imagine the Chancellor of the Exchequer, for all his former pieties on this point when he was a backbencher, having a fit were he required to reduce spending and borrow nothing, or nothing more than is needed to replace existing bonds as they mature. Sir Geoffrey Howe managed it. Has any other since his time? It do not think it would get through, somehow.

The default clause

There has been no default on British government debt since the days of King Charles II, and investors know this, which ensures a high credit rating. It has not had to be put in statute that default is forbidden. If ever default were hinted at, all other payments from the state should stop to give preference to the honour of the state’s finances, starting with the salaries of ministers, Members of Parliament, quangocrats and maybe even the untouchables of the service. This will not be discussed, in case mentioning it would raise the ghost unheard of for three and a half centuries and spook the financial world.

An elected Senate in place of the Lords

Can you imagine it?  John Major remarked that if the answer to a question is ‘more politicians’, it is a damn silly question. 

The current House of Lords was filled with Tony Blair’s placemen in his day, and their clones following them, now entrenched, unremovable until death or reform. There may be a better way to fill the red benches, but it is not yet more elections of yet more political hacks.. Perhaps it would mean appointing lords ex officio from certain learned offices, but then would-be unelected politicians will target those offices for their own ambition and politicize them.  It doesn’t work well in Eire.

One measure surely would be ensure no one has power unless they have proven that they have an office of responsibility and an income not taken out of taxpayers’ pockets.

If I had a hand, I would itch to scythe down the career politicians with a retirement age, bribe others to retire maybe or remove them if they have no honest income.  I might enact that no new peerage can be created until the House is below 500 life peers, and then allow no one to be appointed unless they are a serving magistrate (as they have proven service, responsibility and hands-on understanding of actual deeds of actual people); and they can be picked by lottery.  The House, shorn of paper lords, might be renamed the ‘House of Elders’. Also I could bring back the Earls.

Privatise the Civil Service

This one is impossible, but actually a more sensible idea than it seems when looked at in depth, which I am not going to do. If an article along these lines appears on this blog in forthcoming months, do not be surprised.

The thing I won’t mention

There are a few broken nations in the world where they might have this, but in Britain it would be a disastrous, and utterly stupid idea; so daft and damaging that if it were ever suggested then its introduction would become the uncompromising demand of every loud, fringe, lunatic and special interest group in the land.  I would expect to see it in the Liberal Democrat Manifesto and portrayed by the BBC as “when not if”.  There is that example in – well, let’s not mention it, just in case, eh?

Restoring the Lords’ absolute veto in further cases

The House of Lords lost its absolute veto on legislation in 1911, except in one case: no bill to extend the life of a parliament can pass without the House of Lords. A bill to abolish that reservation might pass without the Lords in theory. Perhaps there are other principles too fundamental to be left at the mercy of the House Of Commons alone? It might first need a reform of the Lords. Even so, I can see dangerous territory ahead there.

Optional two-member constituencies

The old system, before reform, was “two knights from each shire; two burgesses from each borough”, and instead of dividing a county or a borough in two, the whole county elected the top two candidates. It is a thought – and you could ask each double-constituency each election whether the want to vote together or as two parts. Predicting the electoral arithmetic would be a nightmare, but the exercise would be instructive, if possibly also destructive.

An extra vote for net taxpayers

We have all thought it: the House of Commons is filled with politicians eager to rob the taxpayer to pay for votes, so should it not be the victims, those who have a financial interest in the result, taxpayers and their families, who get to choose them, not those who are motivated to encourage this robbery? Then again, there are millions who are technically taxpayers but whose money comes from taxes in the first place and the cash is just recycled: they are not real taxpayers. All right, so this important reform will never be done, but it is out there. An extra vote for taxpaying families would be nice.

Members for the overseas territories

Often discussed, always in the “too difficult” tray, but it is a popular idea in Gibraltar. If anyone wishes to sponsor me, I will stand as member for the British Antarctic Territory.

CANZUK

Ah – another article, I feel.

Any more….

Getting the hang of impossible constitutional ideas is a troublesome balance between thinking of things that are whacky but thought-provoking and those that are too impossible, with the risk of writing ideas that I think are daft only to find someone actually agrees with them. I may add more over the course f this weekend.

The most important thing to remember, is that I do not believe in any of them. Someone will.

See also

A system failing in the middle

Two types of failing constitutional systems attract overstretched metaphors, for which I should apologise in advance. The first is built as a high, impressive building with soaring arches and glittering pinnacles, but where all is built for show while the unseen foundations are made of cheap rubble: that structure cannot stand in a storm. The other is built on a rock-solid foundation but the superstructure is put together inconsistently and in a slapdash manner, and that will break too, although reparably. The British Constitution is this second type. It is possible to fix this, identifying the inconsistencies and poor choices of material, as long as no one damages the foundation.

The structure of government has been built in a series of reforms inspired by prevailing orthodoxy and though that orthodoxy may have been discarded by the next generation, its legacy remains. We may consider the number of quangos established at many points for narrow purposes which have been left in place ‘just in case’ or repurposed when they should have been abolished. These are a visible application of the principle: what is invisible is the tangle of responsibilities, or avoidances of responsibility, within the Civil Service itself.

Whitehall believes in systems. A system is the only way to deal with millions of complex matters at a time. More importantly, a system is the only way to avoid responsibility for individual decisions: proving compliance with a checklist is a free pass out of criticism. It may be honest to say that the system is to blame, but it must be the responsibility of everyone who works with a system to checking its suitability in all the circumstances that may be thrown at it. That requires stepping outside the system, looking, testing random real and fictional scenarios, and fixing the errors as they are revealed. The Civil Service may not be up to that job. Changing recruitment and promotion can improve it.

Getting the right personnel in the Civil Service is not a question of choosing the Apollonian over the Dionysian character or vice versa nor of finding Gell-Mann’s Odysseans: for a complex system to work well, it must have a mixture of characters. This includes a mixture of political and social attitudes, as Jordan Peterson has explained it. No society can thrive without a mixture of characters: those whose imaginations can create novelty and those whose drive is to create order, because without order, the system cannot stay stable, and is not a system at all, but without chaotic creativity there ossification.

Lack of diversity then is hampering the Civil Service, and I do not mean tick-box categories of race, sex etc, but diverse characters and viewpoints. Without this real diversity, the service cannot operate properly any more than a society could operate. It takes a divergent take on any situation to find the flaws in an accepted method and to challenge orthodoxies.

There is no conspiracy to mediocrity. Senior staff will naturally replicate themselves at all levels. It is natural in all of us to assume that our own attitudes and priorities are right and therefore to discount those held by others as weird or foolish, and therefore in a system which selects its own successors, a single mindset must prevail and become more entrenched as years pass.  If a workforce is made up of staff all with the same turn of mind, this situation must also reinforce each individual’s solipsistic belief in his own rightness and suppress doubts. Where promotion is dependent on peer-approval, it is the most colourless individuals who must rise and re-enforce their type’s monopoly position.

Recruitment to the Civil Service is strained through the same assumptions. The Civil Service aptitude tests assume a single neurological process and certain priorities, but this excludes alternative, equally valid approaches. It has not been framed in this way deliberately but as part of that self-reinforcing principle.

We used to laugh at this sort of thing when it happened abroad: the Chinese civil service in the imperial days used to select its members on national and provincial levels by a set of exams the terms of which were written centuries before, testing candidates on ancient Confucian theory, not on modern practicality. Innovation was squashed and the Empire fell into decrepitude. It ended only in 1905, by which time the empire was about to fall.

To break the uniformity is a major challenge, because it goes against natural processes. The most successful at this have been those with radical left-wing motives, as they too are wedded to systems and push themselves forward though fair means or foul so as to get the power to change those systems. That is not the right sort of diversity though; only another lot of systems-people, and with odd ideas too. The challenge is to bring different mindsets and ways of seeing things.

It has been pointed out by Mr Cummings and Mr Gove that senior civil servants largely come with an arts-subject background. That is no bad thing for an individual and cultivates the mind well, but a monopoly all in that limited field is dangerous. A thousand years ago Ælfric urged the reason we are given two eyes, two ears and two nostrils for our more complete edification. You cannot understand the implications of a statistical analysis from a study of Horace, but you cannot understand people from mathematics. Now, in fact, there is more diversity than that in academic achievement among senior civil servants, if a few too many economists. I would suggest that the main failure in diversity is diversity of character, or neurological diversity perhaps, and that will take longer to break.

See also

Books

The Constitution, mice and “yes but”

The word “reasonable” is an enemy: it acts as a codeword opening any decision to challenge. Parliament may think that it is creating wise structures and granting powers to those entrusted with the task, but a structure which has within it “reasonable”, or any one of a number of such tripwire words, is as if the bricks were mortared with porridge.

This is not a subject of grand constitutional reform, but it is what will cause reforms to fail. The pettiest words concealed within an Act or Statutory Instrument can hobble the constitutional intent, so the practices which insert those words are indeed constitutional in their effect, and a consideration of constitutional reform must look at reforming the practices of draftsmen.

Discussion of the topic must sound like a rank about minutiae, but while the intent reformers build mighty edifices, it is these mice which undermine the whole, so if what follows sounds like a rant, so be it.

Taking one popular bugbear as an exemplar: the immigration and nationality rules. The relevant part of the Act of Parliament concerning the grant of British citizenship starts robustly enough, saying that no one is entitled to citizenship unless they have lived in the United Kingdom for three years, and that it is for the Home Secretary to decide whether to grant citizenship. If it went no further then the system might actually be robust. However the wording goes on in a worried tone, and has a “yes but”; the decision must take account of X and Y and Z, that there must be no discrimination of nationality (or the usual list).  That was well meant, but it puts such a wide crack in the Home Secretary’s alleged discretion that any decision is turned over to the courts, such that the rule is not “if the Home Secretary is gracious to grant it” as the plain words say but in effect “always grant nationality after three years unless the Home Office has a rock-solid reason against this individual”. Therefore a small proviso has reversed the meaning of the section.

The word “reasonably” is not a convenient throw-away line:  it means there must be reasons and reasons that will be examined in court.  “In her reasonable discretion” is not “the Home Secretary may decide” but “she must follow a quasi-judicial procedure”.

If a decision shall be made “in all the circumstances of the case”, that is not a fluffing wording: it is an instruction that the decision-maker must be prepared to prove that they looked at all possible relevant considerations, or for any missed point their action will be struck down.

If we broaden our view away from Marsham Street, Acts of Parliament which deal with administrative matters are mountains of pushme-pullyou, granting powers and then taking them away with the same hand. Where politicians express despair at the way courts too readily quash acts done in good faith, the first place they should look is their own practices in authorising them only half-heartedly.

It is not (always) the fault of the judges.  If an Act of Parliament leaves the door open, the lawyers will wander in and help themselves to the larder.

All that said, limitations on powers granted are justified. If you give councils the power to close a road, they must be required to tell the residents, and not to block both ends.  If they have power to impose parking restrictions, it must be for the purpose of easing congestion, not to raise revenue. Councils have power to decide planning applications, but that power is greatly restrained, so that they must act quasi-judicially, must exercise their power with a liberal mind and for proper reasons and according to expectations, because this goes to the heart of rights of property and enterprise. In that case you must expect planning powers to be exercised with excessive care and to be challenged in court, as they are.

Where a statute does give exercisable power, it is given and its limits are defined to ensure the public benefit, but those entrusted with that power will not be able to exercise it to the full extent it is given, because they must be sure of the legality, after advice from a worried lawyer. That betrays the breadth of the original authorising statute.

Some statutes, as I observed, must be curbed around with limits. In other cases though, vague or cautious wording in an authorising statute can mute the powers it is trying to give. If the Home Secretary is to be empowered to control immigration and to grant or withhold citizenship, the wording must be tight and not subject to provisos, however well meant, in order that she can exercise that power or refuse to exercise it, at her complete discretion.

I will at before too long get on to more meaty constitutional topics. I would urge as an integral step though a brutal review of the drafting practices applied in Westminster and Whitehall.

See also

Books

The Constitution: mice undermine the wall

A Constitution, Democracy and Rights Commission is a thing around which many projectors will orbit with their ideas, but the brief outlined in the Conservative Manifesto was short, and from Number 10 the challenge is finding what a commission with such a grand name is to do, and what it will not.

There are some big headline issues, like the Fixed Term Parliaments Act, an questions about reducing the number of members of Parliament (the latter already kicked into the long grass). Reducing the House of Lords and winnowing its membership may be discussed. Reform of judicial review is on the cards, but even that is a limited intervention. I have written about that subject before. and will again, but I want to think about the subjects beneath the headlines and which underlie, or undermine, all that stands above them.

There are many points to look at in other articles, but since a frequent topic of concern is judicial review, I may start by looking at the failings which make judicial reviews happen.

As I have observed before, judicial review is rare and applications are rarely successful – about 1% get to and succeed at trial. If it were not for bulging teams of lawyers crawling over every proposed action, there would be more. However it should be worrying that a public authority, having been granted powers for the public benefit, cannot actually exercise those powers without being supervised by a costly legal team. It is as if to grant the power and then take much of it back again.

The issue is a constitutional one: power legally granted yet being hampered by other constitutional reasons. The fault though is not constitutional as such: it is the way in which powers are granted half-heartedly by Parliament, and that is a fault in part from bad habits encrusted over the generations, but also from timidity. Those who prepare Bills and SIs live in fear of criticism if they think too much, and the politicians live in fear of criticism if they leave any gap through which blame may fall. Wee, sleekit, cow’rin, tim’rous beastie, O, what a panic’s in thy breastie! Between these, faltering instructions are given which stifle innovative practice and leave decision-making uncertain unless the decision-makers play safe, which contradicts the width of the powers given.

I will return to this with more particularisation later.

See also

Books

The Salisbury Poisonings – a review

It was well done. I will not pretend to have enjoyed it greatly, though I would have been worried if I had. It was tightly produced and meant well, but so soon after the events it had no drama, because we all remember what happened.

Realising this, the writer pitched it as a human drama, and that is all it could be given its constraints. The Salisbury Poisonings was the BBC’s most promoted drama of the week and must have swallowed a sizable budget for what is essentially a series of internalised tensions, not even inter-personal ones.

The series is primarily not about the poisonings at all, but about the personal struggle of Tracy Daszkiewicz, Wiltshire’s public health supremo, feeling all the responsibility that could come from slipping up just once, and over-reacting perhaps or using her influence to stop others underreacting. That is for the viewer to decide. In addition we have other individuals and households, each with their own dramas, arising from the same events but barely interacting with any linked plot. That is hardly a fair complaint though: this is the reality of how we live and this is a series about real, named people and real, horrible, deathly events and so they interact and fail to interact just as we normal people do, and as they actually did at the time.

Therein lies a difficulty: the familiarity pops the tension that a miniseries like this needs. Had it been fiction, then the scene where Dawn’s boyfriend picks a perfume bottle up from a bin (when the cross-narrative makes clear what it contains) could have been a moment of tense drama, with her future hovering between happiness and death, the audience screaming at the screen ‘Don’t do it!’; but as we know what happened, as a moment of tension it fell flat: sometimes background music is not enough. It is a pity that moment did not quite work, because it really was the moment Dawn’s life was doomed, in silence because reality has no sound-track or looming thunder.

Perhaps it is as well that Saul Dibb had this show.  Another approach, with a different writer, would have been to create an actual drama, to run it like a Frederick Forsyth piece; semi-fictionalised, following the Russians from the moment the order was given in Moscow, plotting, infiltration, execution, exfiltration (and generally spitting on the memories of those actually affected by romanticising the villains). Actually, I cannot imagine Frederick Forsyth writing about a plot so stupidly executed. Had the killers done the job properly, with a tiny dab on the neck and disappearing in the night with evidence, their target (who, mercifully, is still alive) would have passed away alone and his death put down to natural causes. Instead, we got a drama in real life which engulfed the whole of one of Britain’s most beautiful cities.

Within those limits then, it was done well – plotted, scripted, acted. The piece only really showed its depth in the third and last episode, as much of the first and second episodes were filled with the search and decontamination panic, which swallowed too much screen time, serving though to show how much trouble was caused by a tiny smear of fluid on a door handle – in the third episode, with all that done with, the piece could concentrating on the effect on people: Dawn killed and Charlie nearly so, Sergeant Bailey recovered in body but not in mind, and Tracy Daszkiewicz again with the unbearable weight of responsibility upon her and the families torn.

Those involved, both those portrayed and many others, were facing something unwonted and horrible, stepping out of the bland, box-ticking ordinariness of their bureaucratic offices: they were facing the Russian military machine, and they prevailed.

It was only two years ago and these were not paper people conjured from a script. The point was made at the very end when the dramatization was finished and to face the audience they brought the actual individuals portrayed so we could see they and their sufferings were real. If there was no traditional drama it is because that sort of drama is not real life, but they are.