Members of British Parliament are forbidden from resigning.

To circumvent this, they get themselves appointed to a "paid office under the Crown", which disqualifies them as an MP. There are two nominally paid offices kept for this purpose, one of which is Steward or Bailiff of Her Majesty's Three Chiltern Hundreds of Stoke, Desborough and Burnham in the county of Buckingham. Leaving parliament voluntarily is therefore sometimes called Taking The Chiltern Hundreds .

What I find so fantastic about this 350 year old hack is that though it could easily be fixed with legislation, British politicians prefer to muddle along with the workaround, elevating it to not just a tradition but a minor institution complete with idiomatic fixtures.

Wow guys. Just wow. Good luck with that House of Lords reform.

Crikey reports that the British Commons voted on several measures to make the House of Lords a democratic house rather than the titled house it is now.

From Crikey's mailer an article by Charles Richardson:

The Blair government had proposed a scheme to elect half of the Lords, with the other half appointed. But it gave its MPs in the Commons a free vote on the various reform proposals, as did the opposition parties.

The 50-50 option was overwhelmingly rejected, 418 to 155. So were options for a fully appointed upper house (375-196), for 60% elected members (392-178), and for abolishing the Lords entirely (416-163).

Supporters of democracy then swung their support behind a proposal for a chamber 80% elected and 20% appointed. That was narrowly carried, 305 to 267. Finally came the vote on a fully elected upper house, which, to the surprise of observers, passed much more clearly, 337 to 224.

Which suggests that the representatives in the House of Commons are not scared of democracy. Good on them.

There is a group of British sortitionists, the Lords Reform Institute which advocate the introduction of lot/jury into the upper house. I personally think that sortition is the next political technology which will make its way into the legislative and other branches (outside of the judicial where it is used in juries) in order to improve democratic governance.

The Lords Reform Institute has been discussed on SSR before: Sortition for the House of Lords in Britain.

An interesting article in the Independent titled: Brown may bring in written constitution . Britain's constitution is a non-written one, unlike America's and Australia's. Britain has non-contiguous acts which make up what would be called a constitution, but they are not in one entrenched or statutory act. A written constitution would bring Britain into line with modern constitutional practice.

A common aspect of modernising Westminster systems has been creating a unitary constitutional document. Australia went along that path with federalisation, creating an entrenched constitution. New South Wales and Victoria also have single constitution, but not with all part entrenched. Queensland and Canada have both been recent Westminster system which updated their constitutions to the Washington style (it should be noted some Greek city-states from antiquity had written constitutions, so it wasn't an American invention).

However, the Australian states of Tasmania, Western Australia and South Australia all have unwritten constitutions - as does New Zealand. In fact, IIRC, Tasmania and Western Australia share a founding British Act as their first constitutional legislation.

The biggest and best known Westminster system is the British Parliament. When the British Empire decided having an agrarian empire was too costly, it started exporting responsible government to its colonies. Centralised control of America led to revolution, but local self-government, rather than colonial Naval Governorships, aided the political growth of colonies such as Australia, Canada and New Zealand.

Unwritten constitutions are largely based on convention and precedent, which means their institutions do not change much. For instance a House of Lords still appears in the British system, and due to its non-democratic nature proves to be a constant temptation for corruption - witness Blair's peerage scandal. Unwritten constitutions also build up bizarre absurdities as conventions arise organically rather than constitutional or statutory law. A good example of this is Taking The Chiltern Hundreds .

From the article:

The Chancellor, who will launch his campaign for the Labour leadership today, will promise to make constitutional reform a priority. He wants to bring in a "new politics" as he tries to repair the damage after Mr Blair was accused of taking Britain to war in Iraq on a false prospectus.

A written constitution could spell out the respective powers of the Government and Parliament, boosting the ability of the Commons to hold ministers to account and, for example, being guaranteed a vote before military action. The blueprint could also outline the rights and responsibilities of individual citizens.

Will the constitutional rigour of a single document lead to Britain having a Bill of Rights? Really; no modern constitution and and no political system that operates as a market-state is complete without one. Australia's reason for not having one is executive selfishness, the Westminster system gives way too much power to the executive and a bill of rights is negative and restrictive to government action.

The War of Jenkin's Ear between Britain and Spain has a bizarre origin. Robert Jenkin's ship was boarded by the Spanish to determine if he was complying with the Treaty of Seville. Jenkin's claimed the Spanish cut his ear off; he pickled it in a jar, and presented it to Parliament. War was declared.

That is the glib history to the start of the war, but by 1739 Spain was a waning, if still rich, power. The two rising powers were Britain and France, who would be locked in a militaristic competition over the next century and a half to determine which nation would be the sole power in Europe. The war against Spain was probably opportunistic.

It appears to have backfired, as Spanish naval power was not broken. Then again, European history is pretty miserable, in that the states were constantly warring with one another. Extended peace was rare. Fortunately for Britain most of the fighting occurred in continental Europe, the colonies or the Atlantic Ocean.

These paragraphs caught my eye from Arthur Hermann's To Rule The Waves:

The British public had expected an easy victory over the Spanish [in the War of Jenkin's Ear], "mere poltroons" who "durst not look our squadrons in the face at sea."

The [Spanish] colonies in [Central and Southern] America would rise up to meet their British liberators. "Millions of miserable People wou'd bless their Deliverers: their Heart and Minds wou'd be open to us."

But instead of giving up at first sight of British warships, the Spanish reverted to a French-style guerre de course while concentrating all their resources to defend their most important bases, Cartegena [Columbia] and Havana [Cuba].

Privateers from Spanish ports scored success after success against British shipping, which the navy seemed unable to prevent, even as the Spanish flota evaded their attempts to stop it.

I am surprised how the language from 1739 mimicks some of the language of the last few years.

x-posted

Anthony Barnett asked the six candidates for deputy leadership of the British Labour Party their opinion on a written constitution. He got full replies on open democracy. The questions are excellent and the replies, for the most part, are straight forward.

Hazel Blears comes off worst in the answers. She argues against a written constitution as it gives too much power to judges, who come from a 'narrow strata' of society. This is false. Judges are given tenure as specialists based on merit in a republican system.

Britain's constitution is part written in statutes and partly maintained through custom and convention. The judicial plays exactly the same role as in a written system, just that the constitution is harder to amend in a written one.

Activist judges are a problem, but they are exposed as activists because of the clarity a written constitution provides.

There is still the issue of constitutional law and practise being developed outside of the written constitution itself, and ended up an aggregate of constitutional allowances, but in most cases, such as Income Tax and Workchoices, it is Parliament that is taking advantage of that activism and not relinquishing their new judicially won powers.

It is as much a failure of Parliament as the High Court. An unwritten constitution will not change that, and if anything, an unwritten constitution is far easier to change statutorially and by breaking convention - especially in an emergency - which is usually when constitutional bounds are expanded.

Blears also states that she is 'at heart a unicameralist'. A parliament with one body is probably the worst of all structures. Great for the executive in a Westminster system, but bad for governance. The unicameralist parliament in Australia managed to produce the unchecked excesses of Joh Bjelke-Peterson.

One of the purposes of a written constitution is to restrict government through clear law, that is higher than statute, meaning government cannot amend it without a referendum or public will (though NSW has only parts of its constitution entrenched).

The constitutional law and organisation structures are design to expose tyranny quickly, and to recover from a tyrannical government or action with haste. Unicameralism is very weak in this area.

The answers by the other candidates on the purpose of a written constitution did not touch this issue. Most of the answers were that the written constitution handed power to individuals and the community. For instance Peter Hain:

Yes - as a way of handing more power down to individuals and local communities, and entrenching democratic rights and accountability.

Presumably his view of a constitution is one that Parliament cannot amend at whim, which means the entire document will be entrenched and only modified by referendum.

From the comment Hain sees a written constitution as being synonymous with a Bill of Rights. This is a very modern republican view of a constitution - which in republican doctrine is incomplete without constitutional liberties that the legislative and executive cannot intrude into.

The third aspect of his statement is that he appears to see the written constitution as a chance for organisational renewal. The House of Lords is an undemocratic body in British system. He answers in another question:

I am in favour of replacing the House of Lords with a fully, democratically elected Senate, with powers to revise but not block legislation so that the primacy of the House of Commons is not undermined.

Hain's does not mention how the Monarchy fits into his comment, in what is a very republican statement. Others answered on the House of Lords that it should not be able to amend bills or veto a bill from the House of Commons.

Anthony Barnett is to be congratulated for asking good questions, and the candidates for their replies. Very interesting.

These are excerpts from the UK Chambers' Hansard of Gordon Brown's speech on Constitutional Reform.

Brown outlines twelve areas where power will devolve from the executive to the legislative:

The route map seeks to address two fundamental issues: to hold power more accountable and to uphold and enhance the rights and responsibilities of the citizen.

While constitutional change will not be the work of just one Bill or one year or one Parliament, I can today make an immediate start by proposing changes that will transfer power from the Prime Minister and the Executive.

For centuries, they have exercised authority in the name of the monarchy without the people and their elected representatives being consulted, so I now propose that in 12 important areas of our national life the Prime Minister and the Executive should surrender or limit their powers, the exclusive exercise of which by the Government of the day should have no place in a modern democracy.

These are: the power of the Executive to declare war; the power to request the dissolution of Parliament; the power over recall of Parliament; the power of the Executive to ratify international treaties without decision by Parliament; the power to make key public appointments without effective scrutiny; the power to restrict parliamentary oversight of our intelligence services; power to choose bishops; power in the appointment of judges; power to direct prosecutors in individual criminal cases; power over the civil service itself; and the Executive powers to determine the rules governing entitlement to passports and the granting of pardons.

I now propose to surrender or limit these powers to make for a more open 21st-century British democracy which better serves the British people.

He is arguing for checks and balances between the Executive and Legislative. Which is very wise and makes for a more deliberative process. It should be noted that Australia lacks several of these too.

I did not realise that parliament could appoint bishops, surely in a republican system, secularism is the goal and parliament, or politics, should play no role in the appointment of clergy. I am aware that the UK is not a republic, and that the Queen is the head of the church as well as state, but surely it could just be gotten rid of and the church told to deal with it themselves.

It is also interesting to note, particularly with the issues in the US, that Brown wants to devolve power, or oversight for pardons into the legislative. In the Washington system the President has absolute authority in this area. It is supposed to be a check and balance against arbitrary judicial decisions, not a political get out of jail free card.

On the issue of dissolution of parliament, under these reforms there must be a majority for the dissolution rather than just the executive council deciding it. This would probably be better handled by fixed terms. The executive calling the election date gives too much incumbent advantage anyway.

Brown seeks to make the Attorney-general have less political intrusion into cases:

The role of Attorney-General, which combines legal and ministerial functions, needs to change. While we consult on reform, the Attorney-General has herself decided, except if the law or national security requires it, not to make key prosecution decisions in individual criminal cases.

Seems wise. There is also a requirement for the public service to be governed by legislation rather than executive procedures. There is also a decoupling of politics and civil service by not allowing special advisors to give orders to the civil servants.

This has been an issue in Australia and has allowed the "I don't know, no-one told me" type get out of jail free cards to Government Ministers. IIRC Bob Brown tried to pass a private member bill in the Senate seeking to stop this practice in Australia.

Gordon Brown also argues for 'citizen juries':

The first is powers of initiative, extending the right of the British people to intervene with their elected local representatives to ensure action, through a new community right to call for action and new duties on public bodies to involve local people.

The second is new rights for the British people to be consulted through mechanisms such as 'citizens juries' on major decisions affecting their lives. The third is powers of redress, and new rights for the British people to scrutinise and improve the local delivery of services. The fourth is powers to ballot on spending decisions in areas such as neighbourhood budgets and youth budgets, with decisions on finance made by local people themselves.

He is also seeking to reduce the age of enfranchisement to lower than seventeen. Ultimately Brown wants it all wrapped in a written constitution (like Australia, but not like Tasmania or Western Australia):

In Britain we have a largely unwritten constitution. To change that would represent a fundamental and historic shift in our constitutional arrangements. So it is right to involve the public in a sustained debate about whether there is a case for the United Kingdom developing a full British Bill of Rights and duties, or for moving towards a written constitution.

Because such fundamental change should happen only when there is a settled consensus on whether to proceed, I have asked my right hon. Friend the Secretary of State for Justice to lead a dialogue within Parliament and with people across the United Kingdom by holding a series of hearings, starting in the autumn, in all regions and nations of the country, and we will consult with all the other parties on this process.

This is an important speech, which, ironically, because Australia shares a Westminsterish system and is deficient in many of the same areas, will probably have political ramifications in Australia too.

Very interesting.

x-posted eurotrib

Via Westminster Wisdom, Vino discusses assymetrical devolution of the British political system.

Australia uses the technology of federalism and a written constitution to separate the political responsibilities between the national government and the states.

The British constitution is a mix of practice, convention and statutes over time but until recently there has not been a growing layer of government outside the national parliament in London and the local councils.

The devolution and establishment of Scottish parliament, the Welsh Assembly and Northern Ireland parliament, without the clear cut separations of federalism or confederacy have raised some issues.

Vino argues that asymmetrical devolution is natural in national systems and can be accounted for politically without too much disorder.

Secondly, looking abroad asymmetrical devolution does exist in a number of cases abroad. In Spain, Catalonia and the Basque country have more autonomy than other provinces of Spain. The Spanish Constitution enshrines the right of provinces to ask for and negotiate autonomy with the Centre - if they wish.

Due to their history and to the existence of indigenous nationalist movements, Catalonia and the Basque country have done so. Other provinces have not felt the need to do so.

Also, although it is mostly a uniform federal system, the US does have forms of asymmetrical devolution too. Washington DC does not have the autonomy a state does. It is under a form of direct rule by the federal government.

Such is a case of asymmetrical devolution, as powers are vested in states which are not vested in the local government of Washington DC.

It is interesting to note that the Australian Territories have been evolving into the federalist structure with self-government, and presumably becoming states in the future. The Northern Territory has already posed the question of becoming a state.

Washington DC by comparison has its budget approved by a committee in Congress. It has a delegate in Congress but like delegates from Puerto Rico, American Samoa and Guam, the representative is a non-voting position who can take part in floor debates.

There is a great deal of resentment in Washington DC that they do not have full Congressional enfranchisement in the House and Senate. The number plates on cars for Washington DC have "Taxation Without Representation" emblazoned on them.

Vino argues that asymmetry is often a needed political compromise:

The Spanish case, to me, is a case where asymmetrical devolution has been designed to reach a much-needed compromise between the nationalist aspirations of local nationalists and the desire of the bulk of the people and of the country as a whole to maintain a degree of national unity.

Autonomy which leaves local nationalists of a community satisfied can stop short of outright independence. Such autonomy enables a compromise between the nationalist aspirations of Catalan nationalism and the desire of Spanish nationalism to keep Spain united.

Gracchi however does see a need for an English Parliament. This would make the UK more akin to a Federalist system as currently the national parliament is doubling as the English parliament.

The issue at the moment in the UK is that there are various asymmetrical devolution settlements - there is not just one problem - but Parliaments in Wales, Scotland and Northern Ireland all have different powers and in England there is no body with those powers.

All other decisions are taken at a national level - hence whilst a Scottish MP at Westminster can vote on English health matters he can't vote on Scottish health matters.

This produces the situation like in England recently where a measure passed charging English students for their university stay, because Scottish MPs voted for it, when Scottish students receive free university education. There is here a manifest injustice.

Gracchi also argues that this form of political structure is incompatible with representation and leads to unjust democratic outcomes where "votes mean different things in different places".

Fascinating discussion. Both links are well worth the read.