Page Under Construction

The text below is taken from comments posted (on various threads) during the ConstitutionUK project run by the LSE in 2015 to crowdsource a  new constitution for the UK. It will be substantially rewritten before this website goes fully live.

Is it likely, that if we had had such a Monarch as you suggest prior to 2008, the financial crash would have been prevented? If not; would the people have spontaneously risen up and got rid of the monarch? Would we then be any better off?

“The monarch cannot be allowed any substantial power because the constitution provides no mechanism for withdrawing it.” This same Constitution may allow for there to be a change of Government, but its mechanisms provide little that could change Parliament, let alone general political-party-policy objectives.

The same people who were in Parliament in the run-up to the crash are the very same people that are there still, and it is more than likely that they will be there again after the May election.

I’m not prepared to lose sleep over a proposal to introduce a mechanism less certain than patience to bring about a change of HoS, and no more effective than what is in place to bring about the dismissal of a Government.

You may well be more right than I, more attuned to what this particular exercise is all about, but if all we are being asked to participate in is the codifying of a myth, rather than the posibility of ‘creating’ a Democracy wherein the power lies with the Citizen through a document that sets out the mechanisms whereby the Citizen can effect the way s/he is Governed; why bother?

*******

You don’t expect everything to be put right with a single reform, do you, Tom? As far as I can see, to turn the existing constitution into something fit for a mature society we need a raft of fundamental reforms, which will all have to work together coherently.

I’ve posted a couple of other proposed reforms and I’ll be posting others over the next couple of days. Most of them could be brought in separately and would be an improvement on their own. But a constitution is a set of interacting laws; unless each aspect of it is designed within the context of the whole, we end up with a patchwork. (You’ve commented on my post on Coherent Law – https://constitutionuk.com/post/84153 – but you may not have seen the one on Parliamentary Sovereignty – https://constitutionuk.com/post/83980.)

A power to dismiss the monarch implies a power to dismiss the government. After all, that is one of the main powers of the Head of State and a failure to exercise it would perhaps be the most likely impetus for the public to rise up.

I’ve no idea whether the financial crash would have triggered a dismissal of the monarch. I’d guess not because I think enough people would have recognised that no one had a good enough grasp of the underlying causes to have prevented it in the existing system. (I’m hoping to post some proposed reforms to the monetary system which I think would remove the instability inherent in its current form, but I regard that as only a quasi-constitutional reform so it’s near the bottom of my list.)

My guess is that most of us engaging here are worried that it will produce something of purely academic interest. My goal, over many years, has been to identify features of the constitution which are clearly indefensible, and to think of solutions which can a) be introduced with a minimum of disruption and b) will remove barriers to change without forcing it on us. A proposed constitution which meets those criteria wouldn’t just be an academic exercise because, if Parliament rejected it, it would provide a basis for a challenge to the existing constitution in the courts. I’ve certainly given plenty of thought to how such a challenge could be mounted.

****

(From Nigel Harpur)

Hello Malcolm,

I read your idea carefully and with interest as you outlined your points regarding the almost ‘limbo’ like status of the powers currently invested in our hereditary head of state and also regarding a possible ‘step along the way’ to a more democratic and accountable system.

I do agree that a mechanism to dismiss the head of state would be more palatable to those that for whatever reason ‘like’ the existence of a monarchy than just removing them from the role altogether, but I can’t see how the spontaneous will of the people could be fairly ascertained without a full national vote.

Another sticky point would be, as I think you have noted yourself, the selection of the next one. I myself would never be able to accept any form of hereditary process with all it’s pertaining special privileges etc., it’s just too medieval and I suppose, to me at least, ‘just plain wrong’.

I find myself thinking, “If we are going to have a full vote to dismiss the head of state then we may just as well be voting for their replacement”, but on the other hand I do appreciate very much your position that we may never make it all the way to a fully democratically selected head of state in one go. Perhaps it’s worth considering that the criteria for candidates to stand for the role could very easily be written to exclude politicians and financial supporters of political parties, plus the existing royals would be free to stand for election. At the moment they’d most likely win, but at least they’d then have some real mandate behind them?

Anyway, thanks for the thought provoking post.

****

Thanks, Nigel. I don’t know if you followed the link to my earlier post, Foundations of Democratic Accountability – https://constitutionuk.com/post/83974 – where I gave a bit more detail on the process I envisage, but the comment below will make more sense if you did.

In practice, I imagine it would be very rare that it would come to a full vote. Firstly, it wouldn’t generally erupt out of nowhere (though there is that potential). It would usually be preceded by a period when there would be some challenges from individual juries, but not enough to trigger the sovereign jury which would be empowered to order a referendum. So the process would provide feedback which hopefully both government and monarch would take note of. And, in practice, if it did come to a hearing in front of the sovereign jury, the monarch would quite likely jump instead of waiting to be pushed.

Having said that, I think it might well evolve so that a referendum on dismissal would include a vote on a successor but I think it would be a mistake to include that in the first step.

You mention their special privileges as a reason for rejecting a hereditary monarchy but I don’t see that there’s any intrinsic connection. One of the points I made in my submission to the Select Committee is that “the blatant injustice of inheritance law, as it currently operates with respect to land, undermines the legitimacy of the monarchy, while the constitutional importance of the hereditary principle inhibits proper discussion of the inheritance of land”. Those special privileges have been gradually whittled down anyway and the step I’ve proposed here would probably accelerate that. The clarification of inheritance law which I’ve proposed in A Right to Land – https://constitutionuk.com/post/84718 – would very likely also reduce them significantly.

****

(From Fiona Condon)

Why not go the whole hog and have and elected head of state? That way, we are less likely to want to depose them. We would also get rid of the problem of the undemocratic nature of hereditary positions.

****

At some point, we might well want to exchange the problem of the undemocratic nature of hereditary positions for the problem of an electoral cycle which gives us a choice between a handful of candidates who have been preselected by processes we have little control over. Though, personally, I can’t see much advantage in it.

I’d say you’re taking a very narrow view of what is democratic. I’ve argued in another post – Foundations of Democratic Accountability, https://constitutionuk.com/post/83974 – that it is the power to dismiss our leaders which is the essence of democracy. Elections, in our current system, are primarily a means to that end. If we had effective mechanisms for triggering dismissal, I think there’d be little appetite for regular elections.

But what I’m interested in is reforms which have some chance of getting adopted (even if that requires a confrontation between the courts and the government). That doesn’t exclude radical reform (my own proposals, on the whole, are significantly more radical than most of what’s being proposed here) but it does mean reform needs to be restricted to what is genuinely necessary. The relatively simple reform I’ve proposed would remove the objection that the monarchy is not democratically accountable, an objection which nobody can reasonably argue against but it merely removes a barrier to change – it doesn’t impose change.

To justify switching to an elected Head of State, however, requires introducing new procedures – which means you need to show that there would be some real benefit from doing so. If there were any evidence that systems with elected Heads of State are significantly more effective, free, peaceful (etc) than Britain, you might have a chance of doing that. But that doesn’t seem to be the case.

****

(From John Atkins – in ‘We need an elected HoS)

Would it not be a good idea to stop this pedantic wrangling and actually get down to debating the pros and cons of an elected versus heriditary head of state.

When this subject was proposed the idea was presumably to tease out various viewpoints regarding the effect that a change may have for better or worse from one system to another.

I cannot see that it is particularly helpful to keep repeating the same mantra i.e that the discussion is pointless because a claimed 80% of the population either want or do not care whether or not the position is heriditary.

Perhaps those that seek no change instead of merely telling those that do that change is unnecessary will explain the reasons why the heriditary system should retained. They may then convert some to their way off thinking. Surely this will be more productive than merely trying to knock down ideas by wordplay without attempting to put a alternative in place.

As a final request please refrain from merely reiterating that the majority do not have to explain as that has not so far moved this matter forward.

****

“Would it not be a good idea to stop this pedantic wrangling and actually get down to debating the pros and cons of an elected versus heriditary head of state.”

I don’t think this project has any chance of resolving that debate, John. What we do have, is a chance to reach agreement on a reform which should be acceptable to both sides. Establishing a mechanism by which the public could trigger the dismissal of the monarch would remove the objection many of us have that the HoS is not democratically accountable. It would do that without breaking with tradition and without the need for regular elections which many of us consider would be unlikely to be an improvement (though it would not in any way close the door to further reform).

I’ve proposed such a mechanism in a couple of posts – Foundations of Democratic Accountability ( https://constitutionuk.com/post/83974 ) and Democratically Accountable Monarch ( https://constitutionuk.com/post/84150 ). The second of those includes a limited justification of the hereditary principle.

****

(From Gavin Russ – in What Happens Afterwards)

Hypothetically, if the citizens voted in whatever manner, either via Parliament(which I think is unlikely) or via a referendum, after the eventual removal of the monarchical institution, what exactly does the nation ‘do’ with the institution? Whether rightly or wrongly, time and evolution has  been invested in this institution and there would need have to be a ‘dis-entanglement’ of notional powers. A simple yes/no might cause a period, or even an extended period of Constitutional ‘turbulence’! This period might just possibly lead to public unrest as there still exists a great residual affection for the monarchy. How and who would manage this process? How would the citizens be consulted during any ‘transitional arrangements? How would the ‘proposed’ constitution seek to replace a gradually transition of powers from the Monarch to the publically constitution? What happens to the estates and accrued wealth of the institution of the monarchy? I would welcome some thoughts on ‘transitional’ arrangements. Simply to suggest that the monarchy is removed at the mark of X on a referendum ballot YES/NO to the institution might actually create more problems than constitution would seek to resolve? However, I am avowed republican and the establishment of a constitution, carefully reviewed by Parliament and a constitutional court might be able to set out a transference of powers away from the Monarchy and towards a Commonwealth. More questions than answers … Sorry!

****

One of the advantages of the change I’ve proposed in Democratically Accountable Monarch – https://constitutionuk.com/post/84150 – is that it allows those questions to be left for later. As far as I’m concerned, it’s just too big a reform to be done in a single step.

I’d say the monarchy’s estates and accrued wealth are just part of a wider problem. I’ve argued, in my post on A Right to Land – https://constitutionuk.com/post/84718 – that inheritance law should be primarily concerned with the transfer of responsibility rather than wealth. My view is that existing inheritance law has become detached from its roots; that, at the time when landownership was part of the machinery of government, landholders’ power to nominate their successor was actually a responsibility rather than a right. Restoring the integrity of that law would allow the present distorted situation to unwind over a generation or two.

****

(From degauntier in ‘Is the British Monarchy as bad as has been suggested by Graham Smith?’)

But surely it is easier to let the people choose the head of state, rather than getting one because of of who their Ma or Pa was and having to remove them later? How is the hereditary principle better than the democratic principle, and if so why aren’t we using it for all our representatives?

****

(In ‘Is the British Monarchy as bad as has been suggested by Graham Smith?’)

I don’t really have a preference between hereditary and elected, Daniel, I’m simply looking at what would be the simplest first step to move us towards a system which we could all respect. The mechanism I’m proposing would work as well with an elected Head of State (and, to my mind, would still be essential) but it should be much more acceptable both to those who revere the monarchy, and to those who don’t have any great respect for the monarchy but consider that an elected Head of State is unlikely to be an improvement. And it would quite likely lead to an elected Head of State in a generation or two.

Treating it as a straight choice between hereditary and elected obscures the issues which block reform. If we switch to an elected Head of State we adopt a whole lot of baggage, in the form of an electoral process. Many people who have no great love for the monarchy are not going to embrace a process which results in huge amounts of money being poured into convincing us to elect Tweedleron rather than Tweedleband. Until republicans can propose an electoral process which inspires confidence, most of us are going to prefer the paper-devil we know.

In the meantime, as I’ve been pointing out, there is a third possibility …

****

(From degauntier in ‘Is the British Monarchy as bad as has been suggested by Graham Smith?’)

I have read the third possibility, but avoided commenting on something as it was getting no support and I couldn’t think of anything positive it offers over the elected option. To my mind, it’s a giant fudge akin to the ludicrous elected hereditaries we have in the current House of Lords.

For all people apparently don’t like an electoral process, I see no actual evidence of it. They’re not fans of politicians, granted, but the clamour for more referenda and the enthusiasm in Scotland for the indyref suggest that people are quite keen on more and better democracy.

****

(In ‘Is the British Monarchy as bad as has been suggested by Graham Smith?’)

What it offers is a relatively easy first step. At bottom, my proposal is simply that there should be a recall mechanism for every position of authority and that introducing such a mechanism should come before most other reforms.

Are you suggesting that there shouldn’t be a recall mechanism?

I’m not even sure exactly what you’re proposing. Simply arguing against something isn’t enough. Unless you point us to some specific proposals for what should be put in its place …

Yes, people are keen on more and better democracy, but they’re not keen on more democracy for its own sake, and they’re not keen on potentially worse democracy. Most people don’t see the monarch as playing a significant role in political life or in government, and don’t see the need for a Head of State who would. By all means, try and persuade them they’re wrong but, until you can, it’s unlikely that a proposed constitution which demands an elected Head of State has any chance at all of being taken seriously.

****

(From degauntier in ‘Is the British Monarchy as bad as has been suggested by Graham Smith?’)

I’m proposing an elected head of state – any other option is (if we assume that democracy is one of the fundamental tenets of our constitution) by definition inferior. I don’t buy this idea that democracy is fundamentally about how we remove leaders – being able to choose them is at least as important and much less passive.

****

(In ‘Is the British Monarchy as bad as has been suggested by Graham Smith?’)

Well, in the absence of any details, I have to assume that what you’re proposing is that the public should be able to choose, on one day every four or five years, between two or three people who have, one way or another, got hold of enough money to drown out all the other voices.

If you regard that as being closer to the essence of democracy than the reactive process I’m advocating, then we’re unlikely to ever reach agreement. Since what I’m advocating is not in any way incompatible with an elected leader, I have to say I find your one-day-every-few-years view of democracy fairly bizarre.

(Comments below from Ian smith’s ‘Head of State’ thread)

I’ll go for this, tentatively. Republicans often seem to brush aside the cost and potential divisiveness of elections but I certainly regard them as significant factors. And, to my mind, the most suitable candidates for the role of impartial overseer are often people who would not subject themselves to a competitive process.

Having said that, I don’t think it would be right for a Head of State to be appointed without any opportunity for rejection by the public. I’d suggest, at least, broadening the recall proposal – https://constitutionuk.com/post/87782 – to include the Head of State.

However, I suspect there’ll be a lot of resistance to not having elections. A possible compromise might be to have a confirmation referendum/election where the candidate put forward by the appointments commission would be deemed to be approved by (a proportion of) abstainers. So, for example, there could be a requirement that votes for other candidates must exceed [40% say] of the total electorate for it to be treated as a competitive election. Although that would risk losing the cost savings, it would make others less inclined to stand and it’s possible the favoured candidate (particularly a popular incumbent) would go through unopposed.

****

(From degauntier)

This is, I’m afraid, nonsense. I am a republican *because* I am a democrat – the cost and potential for conflict in a democratic system is part of its inherent nature and I accept and value it. As for an appointments commission – why are they more qualified to select a candidate than, say, citizens, MPs or Councils who might nominate a candidate otherwise?

The proposed wording I’ve given for Head of State, largely adapted from the German and Irish constitutions, includes the process for impeachment/removal. It also includes fairly onerous nomination thresholds but thresholds which importantly would be achievable by individual members of the public. If we restrict the ability of candidates to spend money silly money on their own election, you’ve a much better chance of keeping it open to average Joe/Josephine than an appointments commission considering who is suitable based on some arbitrary criteria

****
(copied from King Charles the Last)
But, apparently, if the majority don’t want to have to vote on the issue every four or five years, you think they should be obliged to anyway. In your view, in order to keep an incumbent they may be quite happy with, the public should be obliged to pay the cost of an election, and go to the bother of voting (and suffer the psychic bombardment of an election campaign) – and then they have to do it again a few years later! That seems a pretty poor sort of democracy to me. With a system based round a recall mechanism, we’d only need to vote for a new monarch/president when we actually wanted to.

Like you, I also see this whole exercise as being about coming up with what we think a constitution should be, but it’s not just a question of getting it through a referendum – it’s a question of how we make a transition from one well-established system to a new one which is likely to throw up unanticipated problems. Doing it in stages would allow a smooth transition and would make it very much easier to gain public support.

I’m sorry you didn’t like the tone of my previous comment but I’ve not seen any coherent attempt from you or anybody else to explain why an elected Head of State would actually be an improvement. As I said in our last exchange, in the absence of any details, I have to assume that what you’re proposing is that the public should be able to choose, on one day every four or five years, between two or three people who have, one way or another, got hold of enough money to drown out all the other voices. I regard that as a travesty of democracy.

****

“the cost and potential for conflict in a democratic system is part of its inherent nature and I accept and value it”

You may value it, Daniel, but, as I’ve pointed out to you before, others regard it as an imposition. It may be an inherent part of an immature democratic system but I see no reason why it should be necessary in a mature one.

I’ve raised the issue of cost in a couple of other threads and it’s simply been ignored – your own response was simply that you believe the Head of State should be elected. As I said then, if the majority don’t want to have to vote on the issue every four or five years, you apparently think they should be obliged to anyway. In your view, in order to keep an incumbent they may be quite happy with, the public should be obliged to pay the cost of an election, and go to the bother of voting (and suffer the psychic bombardment of an election campaign). And then they have to do it again a few years later!

****

(From degauntier)

Ian – for the avoidance of doubt. I’m not interested in a democratic alternative to an “elected” head of state. I’m interested in an elected head of state, as I must assume are the +243 (current tally) who voted for that proposal. Anything else is an unsatisfactory compromise.

In a democracy, legitimacy derives from an elected mandate. An appointed individual is never going to have that mandate and therefore can me wrong have legitimacy. Only a ballot is acceptable.

****

“In a democracy, legitimacy derives from an elected mandate.”

I’d say, in a genuine democracy, legitimacy derives from whatever process the public recognise as making them properly sovereign. Elections have been central to that in the past but there’s no reason why they must be in the future.

As far as I’m concerned, this project doesn’t end with the convention and, if it does play a part in bringing about reform, it will be despite the republican input rather than because of it. I’m treating it as an opportunity to explore genuine possibilities for making the whole system more accountable.

****

(From Ian Smith)

Dear All,

My recollection was that the role of elected president with executive presidential powers has received little support.  I’ve just checked this topic’s ideas and see that the 2 “President” ideas are currently on -1.  Here are the links to those trailing ideas.

https://constitutionuk.com/category/view#/post/100772

https://constitutionuk.com/category/view#/post/80265

Yes it is true that Republic’s Idea has been totemic and led the way in this project.  I do, however, think that it is important to engage properly with all the alternative democratic selection procedures.

I do not think that we have to accept election as the most suitable method of selecting a candidate if we do not want a political operator in that role.  Republic, in their idea do not suggest that we should have a “President” nor that our head should have presidential powers.  Instead they suggest that ‘A written constitution is an opportunity to put limits on the powers of government and parliament and to provide for a head of state whose constitutional purpose is to protect and defend those limits’. What they are suggesting is that we need a constitution guardian.  If that is what the voters in this project want rather than a president then I do think we need at this stage to think very carefully about what sort of “election” we have.

Even in Ireland, cited by Republic, only persons nominated by a house of the Irish Parliament or by local Councils can stand and so ordinary Joe or Josephine clearly cannot.  We also see from the experience of Ireland that the most usual thing is for uncontested candidates to be put forward and take the job without any election and if there is a contest only people aged 35 years and above are eligible to vote.  That is a democratic process of sorts but is that any more democratic than a person being chosen, “elected” if you like, by a democratically elected appointment commission consisting of people from all walks of life and after rigorous testing of the merits of various competing candidates? I do not think so and would be very interested in hearing the views of more from the crowd.

****

I’m inclined to agree with degauntier that you’re stretching Republic’s proposal a bit thin here, Ian. I don’t know exactly what rules the project is operating by but if there’s a commitment to go with whatever proposal has the most votes, regardless of any unanswered objections, then our crowdsourced constitution is pretty well bound to demand a directly elected President.

But the goal seems to be to integrate everything that’s been voted through into phase two. Republic haven’t engaged anywhere else on the site (and haven’t even refined their own idea in this second phase) so we don’t know what their response is to issues which have been raised in other threads. Nor do we know how the people who voted for their proposal would like to see the gaps in it filled.

The obvious gaps in their proposal are the questions of what happens if no-one stands for election and how abstentions should be counted. The obvious unanswered objection is why there should be an election at all, with all its attendant costs, if there’s no appetite for one among the electorate.

From that perspective, nomination by MPs or Councils, as degauntier has suggested, would certainly count as evidence of the public’s appetite for an election. However, a lack of nominations through those routes wouldn’t be a reliable indicator of a lack of appetite, so allowing nominations from Jo(e) Public, as degauntier has suggested, also seems necessary. But I don’t see that those methods of nomination are in any way incompatible with having an appointments commission, as Ian proposes here, who would have an obligation to nominate a default candidate.

The more difficult question is how abstentions should be treated. Personally, I’d generally be quite happy to delegate my own vote on the issue and, as long as there is a satisfactory recall mechanism in place, I’d regard it as an imposition if I had to vote explicitly in order to keep an incumbent or accept a default candidate. I suspect that’s true for many other people as well. Counting a proportion of non-votes as endorsements of a default candidate would allow the people who don’t want an election to feel represented, without feeling they’ve been forced to the polls by a vociferous minority.

Ian’s proposal clearly couldn’t displace Republic’s, but I don’t see any irreconcilable incompatibility between them. Some clauses would need to be added to what degauntier posted in Republic’s thread, defining the establishment of the Appointments Commission and their obligation to nominate a favoured candidate, and defining how non-votes are to be counted. Have you any wording in mind, Ian?

****

(From degauntier)

…if the majority don’t want to have to vote on the issue every four or five years, you apparently think they should be obliged to anyway.”

This is not my view, and I’ve given you no justification to present it as such.

My reasoning, which again I’ve been clear about all along, is that democratic legitimacy obtained via election is an end in itself – it needs no further justification or reasoning.

****

Fair enough, Daniel, I can see that’s not strictly true and I’ll try not to misrepresent you again. Do you accept “if the majority don’t want to have *a vote on the issue every four or five years, you apparently think they should be obliged to anyway” as a fair assessment of your position?

I realise that *you regard ‘democratic legitimacy obtained via election’ as an end in itself. I’m simply pointing out that what you’re hoping for is likely to remain out of reach unless you’re prepared to engage with other people’s concerns.

****

(From Jeremi)

I like a lot of what you {and Ian Smith) are proposing but my biggest ‘niggle’ is how can we guarantee that an elected head of state achieved through any of the procedures suggested here, will be genuinely apolitical?

Its not too difficult to imagine that there would be all the usual political horse trading and conspiratorial meetings by the political parties to arrive at a nominated  ‘Appointments Commission’ members of which would then be absolutely fixed on seeing someone sympathetic to their political leanings get on a presidential short list.

A presidential candidate can easily demonstrate that he/she does not belong to a political party but operating in the highest echelons of government it would be almost impossible not to be influenced by one or the other political ideal.

I do not have an answer to this unfortunately and so must we accept that however we try to construct a democratic procedure to elect a Head of State it cannot at the end of the day be guaranteed to be fair?

****

I don’t think there *can be any guarantee that a Head of State will be apolitical but a process which allows for a challenger from outside the establishment will be an encouragement for the appointments commission to choose someone reasonably impartial.

I think it’s also worth remembering that, although our existing system encourages political horse trading, our proposed constitution will be introducing a lot of other reforms which will, hopefully, work to make government and Parliament properly accountable and more truly representative. We shouldn’t assume that honest government is impossible just because we don’t get it under a system which has glaring faults.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s