This is the first edition of this briefing. It has since been updated. Read the most up-to-date version and other briefings on the Constitution Unit’s website.

Constitutional regulators play a vital role in the UK’s democratic system, but recent ethical scandals have led to suggestions that they need to be strengthened. Lisa James, Alan Renwick and Meg Russell argue that all those in public life should uphold the regulatory system, and take such proposals seriously.

Background

Constitutional regulators enforce key standards and rules. These cover matters which are viewed as too important to be left purely to constitutional norms, but most of which are not covered by the criminal justice system (though some regulators do have prosecution powers).

Regulation is common to many sectors and professions, including those beyond the scope of this briefing. For example, the medical and legal professions use regulatory standards systems, and many industries operate statutory or voluntary ombudsman schemes.

The focus of this briefing is the regulators and regulatory systems that relate to politics in the UK. This includes various codes that govern the behaviour of politicians or officials, and the regulators that enforce them. It also includes regulators which oversee the processes of politics and governance – such as elections, public appointments or public spending – and those that aim to uphold certain standards of public discourse, for example by regulating the media.

Various terms exist for such organisations; for example, they are often referred to as constitutional watchdogs or guardians. Here, for simplicity, we use the term constitutional regulators throughout.

Why do regulators matter?

Regulation safeguards the integrity of a profession or sector, and protects the public. It establishes the boundaries of acceptable behaviour, ensuring that both the regulated profession and those who come into contact with it understand what standards should be upheld. In politics, such standards most obviously include financial probity and personal conduct. Regulation also guards against unfair competition, often by preventing those in dominant positions from abusing their power. One example is the legal requirement for a purdah period in the run-up to elections, which bars incumbent governments from using public money or resources to support their campaigns.

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With just two weeks until polling day, the major parties have all published their manifestos: we now know their stated plans for the constitution. Stephen Mitchell, Elspeth Nicholson, Harrison Shaylor and Alex Walker examine what each party has to say about constitutional reform of the UK’s institutions, altering the devolution settlement and developing a written constitution.

This election sees a series of radical proposals for constitutional reform from all the political parties. You would not glean this from the introduction to most of the manifestos, or the table of contents; the parties are keenly aware that most voters are not interested in constitutional reform. So we have had to dig deep to extract the key constitutional pledges from the manifestos. We start with their high level plans for a constitutional convention and a written constitution, before discussing devolution and the Union, electoral reform and parliamentary reform. We have not included their plans for Brexit, because these are well known; but Brexit will obviously be a significant – if not the biggest – constitutional change, with major knock-on effects elsewhere. Nor have we included the parties from Northern Ireland, in the interests of space: this analysis is confined to the parties standing for election in Great Britain.

Democratic innovation

A number of political parties have promised citizen-led democratic initiatives in their manifestos, particularly on constitutional questions. Several parties want to develop a written constitution via this participatory route, and some have also promised citizen involvement on other questions, such as climate change.

Labour have set out their plan for a ‘UK-wide Constitutional Convention, led by a citizens’ assembly’. The scope of the proposed convention is broad – considering the renewal of parliament, how power is distributed and the relationship between the nations and regions of the UK. The convention will also consider the Welsh Government’s 20-point devolution plan, published in October.

The Conservatives agree that ‘proposals to restore trust in our institutions and in how our democracy operates’ are needed. However, they stop short of a citizens’ convention, opting instead for a ‘Constitution, Democracy and Rights Commission’ to be set up in their first year. One of the Commission’s key stated tasks will be to ‘update the Human Rights Act and administrative law to ensure there is a proper balance between the rights of individuals, our vital national security and effective government’; and ‘ensure that judicial review… is not abused to conduct politics by another means or to create needless delays’.

The Liberal Democrats and the Brexit Party both mention a written constitution and set out measures for greater citizen involvement. The Liberal Democrats promise a written federal constitution that enshrines home rule and makes permanent the Scottish Parliament and National Assembly for Wales. They also plan to introduce a range of citizens’ assemblies at both local and national level on ‘the greatest challenges we face’, including climate change and the state’s use of artificial intelligence. (more…)

Kensuke Ueda outlines the context for the recent reinterpretation of Article 9 of the Japanese Constitution, which until now outlawed war as a means of settling disputes. He suggests the manner in which the changes were pushed through is worrying for Japanese constitutionalism.

On 1 July this year the Japanese Government passed the cabinet decision on the ‘development of seamless security legislation to ensure Japan’s survival and protect its people’. This new direction in national security legislation has attracted a great deal of attention because it contains a change in the interpretation of Article 9 of Japan’s 1946 constitution, which states that ‘the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes’.

‘Change of interpretation’

The conventional interpretation of Article 9 states that it prohibits military intervention. However in light of ‘the right to live in peace’, recognised in the preamble of the constitution, and Article 13, which guarantees the ‘rights to life, liberty, and the pursuit of happiness’ as worth supreme consideration in governmental affairs, Article 9 cannot be interpreted as prohibiting Japan from taking measures to maintain its peace and security and to ensure its survival. The ‘use of force’ abroad has thus been judged not permitted, but Japan has long maintained a Self Defence Force (SDF), which is not seen as unconstitutional as long as it is used purely for the purpose of self-defence.

Following this logic, the government has until now understood that the use of force is permitted only in the event of armed attack against Japan. However, the security environment surrounding Japan has been fundamentally transformed by shifts in the global power balance and the rapid progress of technological innovation since Article 9 was adopted. Many now feel that in the future even an attack occurring against a foreign country could actually threaten Japan’s survival, depending on its purpose, scale and manner.

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On 3^rd December 2013, the Croatian public voted in support of adding a provision to their constitution which defines marriage as “a union between a man and a woman”.  Croatians effectively voted to constitutionally entrench a ban on gay marriage.  The prohibition of same sex marriage in the constitution is in itself is not particularly unexpected in Croatia, with a whole host of eastern European nations failing to recognise the marriage of same sex couples.  What is perhaps more surprising is the means by which it occurred.

Following the 2011 election, the new coalition government in Croatia announced their intention to expand the rights of same sex couples.  In a country where approximately 90% of the population consider themselves to be Catholic, this decision was not well received by many religious groups.  The response by Catholic group “In the Name of the Family” was to launch a public initiative to propose the constitutional entrenchment of the definition of marriage as being between a man and a woman.  An overwhelming 750,000 citizens signed the petition calling for a referendum on the matter, almost 20% of all eligible voters in the country.   As per Croatia’s Constitution, Parliament is obliged to call a referendum when requested by 10% of the total electorate.  So whilst the President and Prime Minister of Croatia both fiercely opposed the constitutional amendment, the 10% threshold was surpassed and the referendum went ahead.  Two thirds of those who turned out voted in favour, and subsequently the government was forced to announce that the prohibition of same sex marriage in the constitution would go ahead.

Prior to the referendum taking place, Croatia already had a legal definition of marriage.  Article 5 of the Family Act 2003 states “Marriage is a legally regulated community of a man and a woman.”   So why the need for a constitutional definition?  The reasoning behind defining marriage not only by law, but also in the country’s higher law, was to ensure that the definition of marriage became particularly difficult to change.  To amend the constitution, a two thirds majority vote in Parliament is required.  This is no mean feat, particularly with regard to controversial or divisive subject matters.   With 13 parties currently represented in the Croatian Parliament, a supermajority becomes impossible without significant cross-party consensus.  Thus defining marriage in the constitution had the purpose not only of limiting the rights of same sex couples, but also of ensuring that this limitation persists long into the future.

What makes this sequence of events in Croatia particularly noteworthy is that the change to the constitution was initiated not by the countries’ elected legislators, but by the public at large.  There was such definitive popular support that the government has been forced into making a constitutional amendment that it doesn’t want to make.  It could be argued that this is a sign of a healthy democracy, with decision making in the hands of the wider population.  In this instance however, the wider population is a largely Catholic, heterosexual majority group.  By voting to discriminate against the minority gay and lesbian segment of society, this bears more resemblance to a tyranny of the majority, than a healthy democratic practice.

The violation of the rights of a minority group is a dangerous precedent to set.  This is clearly a concern for the Croatian government, who have responded by proposing an amendment to the constitutional provision that allows for popular initiatives to incite referenda on issues of constitutional change.  The proposed amendment calls for a restriction on the issue areas which can be brought before a referendum, with the aim of prohibiting any future referenda on issues of fundamental rights and freedoms.

The Croatian government is right to have serious concerns about the use of referenda when it comes to issues of minority rights.  A second popular initiative has since been launched in Croatia, this time collecting signatures in support of limiting the rights of the Serbian minority’s use of their own alphabet.  Yet the governments’ response to alter the constitutional amendment procedure is in itself a questionable strategy.  Constitutions by design lay down the fundamental principles of a state.   By entrenching such principles in a constitutional text, the idea is to firmly embed them, making them very difficult for any governing body to change for their own advantage.  Amendment procedures are therefore vital for the protection of the underlying constitutional principles, and are generally considered to have a somewhat unassailable status.  Thus, a government proposed amendment to the constitutional amendment procedure, could in itself be considered an abuse of power.

In this instance the government’s intentions appear to be admirable in the respect that they are seeking to protect minority groups from future abuses, but if the current government can change the constitutional amendment provision with relative ease, what is to stop future governments from doing the same but with less admirable intentions.  Hypothetically, a power hungry President could decide to reduce the majority required in Parliament to pass constitutional amendments, which in turn could lead to the easier passage of further amendment bills for means such as increasing presidential powers and removing term limits, seriously threatening existing democratic structures.

The events in Croatia perhaps demonstrate a flaw in the original design of the Croatian constitution.  The provision that allows for the supposedly democratic tool, the public initiative, to incite unrestricted constitutional change, seems particularly ill-informed in a country with a substantial Serbian minority group and a history of ethnic tensions.  It appears only logical that provisions are put in place to restrict the use of public initiatives and popular votes, with the aim of preventing minority rights abuses resulting from the prejudices of a majority group.  What is problematic with this approach is that to enforce such provisions, a change to the constitutional amendment rules is required.   This sets a dangerous standard whereby changing these rules becomes acceptable, and future abuses of this power become possible.  To counteract this threat, the government may be wise to consider proposing a second constitutional change, this time setting out strict rules and regulations which restrict the ability of future governments from making any further changes to the amendment rules.  To protect both human rights and to safeguard democracy, there may be a need to first change the constitutional amendment procedure, and then take steps to prevent it from being changed again.

Last week, Stephen Tierney posted an excellent evaluation of the White Paper released by the Scottish Government on “Scotland’s Future”.  In his evaluation, Professor Tierney addresses three issues related to the Government’s repeated commitment to write a constitution should Scotland become independent:  1) when will it be finished? 2) what will be in it? and 3) what process will be used to make it?  Much of his post is on the process of writing a Scottish constitution, so I want to make just a couple of additional observations about the likely contents of a Scottish constitution.  My remarks are based on a report that I wrote last spring with my collaborators on the Comparative Constitutions Project.

First, very little is likely to change in Scotland as a result of drafting a constitution.  As we state in our report:

Almost all countries have institutions that pre-date their entrance into the modern state system and the writing of their first constitution.  Regardless of whether a state’s primordial institutions were purely informal rules, as in the earliest states, or colonial structures, they will likely survive in some form.  Institutions inevitably favor some individuals’ interests over others, so those who benefit from the presence of some institution have a strong incentive to fight for the continued existence of that institution during constitutional drafting.  Factors such as colonial heritage, legal origin, religion, ethnic fractionalization, language, and region are strong predictors of pre-state institutions and, as a result, the content of subsequent constitutional systems. (p. 3)

If Scotland becomes independent, regardless of whether it writes a constitution or not, the institutions established by the Scotland Act (1998) are likely to live on and to maintain the same structure and powers that they have today.  As a result, ordinary politics in an independent Scotland are likely to look almost identical to ordinary politics in Scotland today.

I am not suggesting that Scotland should not write a constitution.  The act of writing a constitution has value beyond the contents of the document.  Writing a constitution can help build legitimacy for the new Scottish state and, depending on the process in which it is drafted and promulgated, may even help to unify the newly independent nation.  By establishing a hierarchical system of law, a constitution may even further entrench democracy and the rule of law in Scotland.  What I am suggesting is that, regardless of any positive externalities that Scotland might reap from writing a constitution, the contents of that document are largely predetermined.

Second, I am sceptical of the Government’s promise to entrench socioeconomic rights in the Scottish constitution.  Socioeconomic rights are easy to promise but hard to deliver.  If the Government really intends to deliver on the socioeconomic rights that it has promised, then it should promise to make them justiciable, meaning that the Courts in Scotland will be able to enforce them, and explain how it intends to pay for them.  The Government has done neither.  As a result, I think it is more likely that there will be socioeconomic rights entrenched in the Scottish constitution but that those rights will be aspirational, giving the Government lots of flexibility when deciding whether or not to adhere to those promises.