Posts Tagged ‘Westminster model’

How to use referendums correctly in British democracy

Brexit referendum represents a constitutional turning point for many reasons and it has shown how the wrong use of the referendum can be dangerous for the British Constitution. According to Claudio Martinelli (University of Milan-Bicocca) British institutions would accept a fundamental distinction between two types of referendums: those that allow the Electoral Body to choose between two clear and defined results, and those that instead involve an asymmetry between the two options or, worse, two indeterminate results.

Since the beginning of the seventies of the last century, referendums have been not only accepted as a constitutional tool to make specific political decisions, but have been widely practiced, at any level of government (national, regional and local), and always on sensitive institutional issues. So that we can even say that Westminster model is changing because of the frequent use of these articulated popular consultations in the political-constitutional practice.

The Brexit referendum in 2016 is therefore only the last link in a long chain, but it represents a turning point in the use of the referendum in the UK: for its assumptions, for the outcome, for the political clash it has caused, for the constitutional cleavages which has opened. The statute providing the Brexit referendum clearly shows the political dimension of the whole operation. During the legislative process, the Conservative government rejected all amendments that could have weakened Cameron’s bargaining power on the negotiating table with the EU. The Prime Minister’s political calculation was that only in the case the EU institutions had really feared a negative outcome, they would be persuaded to accept most of the requests made by the United Kingdom in order to redefine its membership. And there is no doubt that from this point of view the strategy was right: the Cameron-Tusk Agreement was largely receptive to the wishes expressed by Cameron. The explanation must be sought in the fear of the European Union for a domino effect following a negative referendum in the UK. Therefore, only on the basis of political strategy, voters are faced with a referendum founded exclusively on the principle of majority, without other articulations.

But the proposed alternative was basically asymmetrical: in the case of Remain, the Cameron-Tusk Agreement came into force according to a precise and pre-established legal effect; in the case of Leave, there were no predictable effects and consequent proceedings to comply with the voters’ will, particularly about the procedures and terms of the withdrawal. It would be a very strong choice of direction and must be respected by the constitutional bodies, but with undetermined political and legal consequences. Ironically, only after the referendum, it was realized that the victory of Leave rather than providing an answer has opened up several disturbing questions for the immediate future, many of which are still open three years later.

The reference to the legal requirements of a referendum, established in every statute, is important to understand the characteristics of its consequences. Indeed, the Supreme Court of the United Kingdom in a crucial passage of the Miller judgment stated that the effects of each referendum depend on the provisions contained in its founding statute [par. 118]. This statute can regulate the legal consequences of popular consultation or can refrain from doing so. In the case of the Brexit referendum of 2016, as in that of the EEC of 1975, the law did not regulate the consequences of both possible outcomes [par. 119]. Vice versa, in the case, for example, of the 2011 referendum on the electoral system, the mandatory profile of the popular vote had previously been regulated by Parliament, which had taken steps to write a law establishing the electoral rules of the eventually new AV system. But in the two consultations about Europe, this proceeding could not be followed, since the concrete consequences of those decisions could not belong to the free determinations of Westminster but would have been entrusted to the bargaining with the European institutions. In the same way, the Scottish independence referendum of 2014 certainly could not determine the nature of the new relations between Scotland and the United Kingdom. The statute of December 2015 at least could have established the concrete ways of invoking Article 50 of the Lisbon Treaty (TUE) according to the British constitutional law, but it has been preferred to avoid even this point so as not to add details to the sharp question Leave or Remain.

In my opinion, it would be appropriate if British institutions would accept this fundamental distinction between two types of referendums: those that allow the Electoral Body to choose between two clear and defined results, and those that instead involve an asymmetry between the two options or, worse, two indeterminate results.

The British Constitution and, within it, the Westminster model have always been in constant evolution. The acceptance of the referendum in constitutional practice is an aspect of this change. The vision expressed by Dicey in 1890, favourable to consider the referendum compatible with parliamentary sovereignty, has found confirmation in the practice of these last decades. Many celebrated referendums have provided a further boost to the evolution of the British Constitution, making it more modern and articulated. I am thinking particularly at those concerning devolution and local autonomy: popular involvement in these political decisions has also strengthened the subsequent parliamentary legislation. However, the Brexit referendum has shown that the peculiar characteristics of the British Constitution, unwritten and not codified, require that the Parliament uses this instrument with accuracy and within general limits that it would be appropriate to establish in a statute. To prevent from the danger of destabilizing questions for political life and constitutional balances, I think it would be advisable to exclude the possibility of setting up a referendum of a merely political nature which result may turn out to be undetermined.

We must not forget that the British system already provides important examples of referendums that are removed from pure political discretion and are aimed to protect certain constitutional structures and, therefore, ultimately, to safeguard citizens’ rights. An important example is provided in the Scotland Act 2016. As it is well known, this law makes the devolved institutions permanent, thereby erasing the dominus role of the Parliament of Westminster on the existence of Parliament and the government of Edinburgh and stating that «the Scottish Parliament and the Scottish Government should be abolished on the basis of the decision of the people of Scotland voting in a referendum». And similar rules we find in Wales Act 2017. Other positive examples of the electorate’s involvement can be found in the Local Government Act 2000, in the Localism Act 2011 and in the European Union Act 2011.

In short, I believe that the referendum is not only compatible with the modern British Constitution and the recent evolutions of the Westminster model, but it can enrich British democracy only if correctly used, that is, not for political strategies but within the framework of constitutional procedures aimed to consolidate institutions and their relationship with public opinion.

This post represents the views of the author and not those of the Brexit blog, nor the LSE. Image is licensed under the Creative Commons Attribution-Share Alike 4.0 International

Claudio Martinelli is Professor in Comparative Public Law and in Parliamentary Law at University of Milan-Bicocca. He is the author of “Diritto e diritti oltre la Manica” (il Mulino, 2014) and “Il referendum Brexit e le sue ricadute costituzionali” (ed.) (Maggioli, 2017).

The Westminster administrative tradition and the permanency of permanent secretaries

Did reforms introduced in the late 1970s lead to the demise of the Westminster administrative tradition, as it is often argued? Christopher A. Cooper focuses on an important tenet of this tradition: the permanency of civil servants. He argues that reforms better reflect a pattern of institutional layering on top of the Westminster tradition, rather than constituting its demise.

May 3, 1979, is seen by many as a solemn day in Britain’s administrative history. Believing that senior bureaucrats were more concerned with maximizing their department’s budget than with accomplishing the government’s policy agenda, newly empowered Prime Minister Margaret Thatcher introduced a series of reforms to control the bureaucracy and ensure that administration was subordinate to politics. Many political pundits and scholars have interpreted these actions as constituting the death of the Westminster administrative tradition in Britain.

But how accurate is this common understanding of Britain’s administrative history? Did the reforms introduced by control-obsessed governments really bring about the Westminster administrative tradition’s demise? Have the tradition’s tenets of merit recruitment, permanent positions, and anonymity disappeared from Whitehall?

One cannot be blamed for being somewhat sceptical. Bureaucracies are notoriously rigid. They are large, hierarchical, and rule bound, all of which makes them resistant to change. Tony Blair’s memoir is rife with frustration of bureaucrats who embody the classic Westminster administrative tradition. Although he became Prime Minister almost 20 years after Thatcher first introduced her reforms, Blair claimed that “The Sir Humphrey character in the TV series, Yes, Prime Minister was a parody and a fiction, but he was the closest parody could come to fact”. Sir Humphrey Appleby, after all, was persistent in his efforts to resist and thwart any attempt to reduce his bureaucracy’s power: “if the right people don’t have power, do you know what happens? The wrong people get it: politicians, councillors, ordinary voters!”

Measuring the tradition’s vitality: permanent secretaries

The vitality of the Westminster tradition over the last several decades can be better judged by measuring its particular tenets over time. One essential component believed to have been targeted by reform-minded governments is the permanency of senior bureaucrats.

While the tenet of permanency holds that the careers of civil servants are isolated from political influence, and unaffected by transitions in government, many scholars suggest that since the 1980s there has been an increased politicization of bureaucratic appointments, especially when a new government is elected. This politicization is because each government wants individuals to be committed to its policy agenda, and is not the same thing as partisan patronage, typically associated with a spoils system, where governments use public offices to reward party supporters. In her memoir, Thatcher stated that when appointing permanent secretaries she was not interested in whether the individual was loyal to her party. Rather, what she wanted was someone who was “one of us” – committed to her policy agenda – and that:

It became clear to me that it was only by encouraging or appointing individuals, rather than trying to change attitudes en bloc, that progress would be made. And that was to be the method employed.

The vitality of the Westminster tradition can be investigated by examining the permanency of permanent secretaries over the last several decades. To do this, I measured year-over-year turnover of permanent secretaries in each ministry between 1949 and 2014. If control obsessed governments have increasingly politicized the appointment of bureaucratic appointments, we should see a larger rise in turnover among senior bureaucrats following a change in government in the contemporary period.

I therefore examine the relationship between bureaucratic turnover and three political events that are believed to push governments to appoint senior bureaucrats. Specifically, a change in the governing party, a change in prime minister when the party stays the same, and the re-election of government. I examined the relationship these political variables have with bureaucratic turnover in years between the 1949 and 1978 and again in years between 1979 and 2014, and also controlled for additional factors possibly affecting turnover such as the length of time the permanent secretary has been in their position and the political party in power.

Figure 1 displays the predicted probability of turnover in the two years following each political event during these two periods.

The results show that the permanency of permanent secretaries has not been increasingly politicized since 1979. A change in party, a new prime minister, and the re-election of a government lead to a rise in bureaucratic turnover in the contemporary period as much as they did in the first three decades following the end of the Second World War. Claims that power-hungry governments since the late 1970s have brought forth the demise of the Westminster administrative tradition, do not accurately describe the permanency of Britain’s most senior bureaucrats. This does not mean that bureaucratic turnover is unaffected by politics in the contemporary period, but rather, that in contrast to claims frequently made: the politics of bureaucratic turnover has not intensified.

What does this mean for Britain?

Almost 170 years ago the Northcote-Trevelyan Report hailed the merits of a civil service staffed by a body of permanent officials. While observers from many countries around the world have expressed concern over what appears to be an increasing politicization of the bureaucracy, including other Westminster countries, the findings of this study bring some much-needed good news. The title of Britain’s most senior administrative officials continues to accurately describe them: permanent secretaries.

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Note: the above draws on the author’s published work in British Politics.

About the Author

Christopher A. Cooper is an Assistant Professor in Public Management in the School of Political Studies at the University of Ottawa.

 

 

All articles posted on this blog give the views of the author(s), and not the position of LSE British Politics and Policy, nor of the London School of Economics and Political Science. Featured image credit: Wikimedia/Fair use.

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