[size0]Please note the following is a reprinting of a letter written to the Editor by Hyanygo, and may not necessarily be indicative of the beliefs of this publication.[/size]
Opposition is not really opposition
There has been a misunderstanding, I believe, over what the Senate is doing, or in any-case what it plans to do. And in this letter I will attempt to clear up those misunderstandings.
Firstly, there needs to be re-jigging, a re-definition, of what we mean by a constitution. It is a re-definition for Europeia, but it most certainly isn’t anything new to anyone who has studied constitutions. Along with my re-definition, in anticipation of my next topic, I will look at how our documentary constitution affects the relationship between the legislature and executive in a general way.Secondly, we need to look at the legislature’s and executive’s relationship in the context of “Opposition”. Understanding the new loyal Opposition is crucial. Thirdly, I will offer guidelines on how the relationship is to blossom in this bold and new era.
On my first point we should understand that there are in fact two meanings. The first is known in Europeia: the constitution of a region is the written document or text which outlines the powers of its important regional institutions. Some constitutions may set out fundamental rights, and it is characteristic of documentary constitutions, particularly those guaranteeing fundamental rights, that they impose constraints on the powers of those institutions. Moreover, there are special procedures for constitutional amendment; a documentary constitution cannot usually be changed by ordinary legislation. This is all fine, this narrow definition does for the time being, but at this point in time it is found rather lacking. It is lacking because it is so narrowed down to a text, it doesn’t recognise the non-legal aspects of how government works - how it is constituted.
The second, much broader meaning, is that it refers to the collection of legal and non-legal rules which compose the system of government. Legal rules are those which are interpreted and enforced by the courts, while non-legal rules are the customs or conventions regarded as imposing obligations, although they are not enforceable by judges.
The most obvious question to ask, now that we have some idea of what a constitution is, is: what are constitutions for? One function of post-colonial (from regions that empire) constitutions is to give moral authority, or legitimacy, to the newly independent region. Secondly, they are drawn up to establish the fundamental principles of a new system of government subsequent to revolution. Although NationStates constitutions vary in their content and background, common purposes are obvious in the liberal constitutions. A liberal constitution is not simply a power-map, they are designed to impose limits on the exercise of authority, and to formulate basic rights and freedoms and other fundamental values for the community. As Thomas Paine put it in Rights of Man, “...government without a constitution, is power with out a right”. In other words, government under a constitution is the opposite of despotic government.
Adherence to the principle of limited constitutional government is often referred to as constitutionalism, in much the same way as liberalism denotes support for individual liberties and for minimal intervention with them by the state. These two concepts are linked, but they do have different emphases. The latter principle implies there are certain matters which are no business of the state. Constitutionalism is more concerned with the organisation of political structures to prevent the exercise of authoritarian power by an individual, group, or party. And that is what we must remember.
It is important to distinguish liberal constitutions from nominal or “facade” constitutions. Nominal constitutions are indeed simply maps of political power, describing powers of particular persons and groups. Under these constitutions, as long as it observes the procedures set out in the text, a government (or parleyment) can never said to act “unconstitutionally”. In contrast, adherence to constitutionalism means that the constitution must necessarily check absolute power; otherwise it does not deserve recognition as a proper, liberal constitution. Put another way, it can be said that there is little or no point to a constitution unless its structure and contents reflect the purposes of adopting one in place of despotic government. Otherwise the constitution is a facade to deceive citizens, or foreigners, or both.
Constitutions must act towards that checking of absolute power, which is why I’m continually amazed at the propositions of those in government to let it govern without hindrance, obstacle or check. We become a sham, institutions become toothless and we enter dangerous territory when we accept such warped ideas. How disgusting it is to put up a facade of checks as some have proposed. If one is to enter a region based on liberal constitutionalism, he must be prepared to accept that checks will exist and they should be enforced and will be. It is the road to despotic government otherwise. Those that bemoan checks should then do as they preach and head to despotic regions and autocratic governments - no doubt they’d come back with a tail between their legs.
This position of acting towards checking, received its classic formulation in Article 16 of the French Declaration of the Rights of Man of 1789:
The separation of powers is a device, or set of principles, to check absolute power and thereby foster constitutionalism. Formulated by Montesquieu in L’Esprit des Lois, he argued that if the same person or body exercised both legislative and executive powers, society would fear tyranny through the ruthless enforcement of oppressive laws by the authority which had enacted them. For the same reason, the judiciary should be independent of the legislature and executive. The framers of the US Constitution, like our framers of our Europeian Constitution, saw a division of powers between Congress (our Senate), the President (our...President), and the judiciary (our...Judiciary
) as essential to prevent the concentration of power in the hands of particular parties (factions, the term preferred by Madison, is probably a better word for us actually).
Montesquieu formulated the sepration principle on the basis of his perception of the 18th-century British constitution. It was odd, misconceived and wrong. The United Kingdom constitutional arrangements did not then, and do not now, observe the separation of powers as Montesquieu understood it. In the United Kingdom, there is no separation of persons between the legislature and the government. And ministers (much like here in Europeia) are given the authority to enact delegated legislation (here in Europeia such legislation is called Ministerial Directives), in other words the executive legislates.
There is obvious difficulties with the pure separation of powers principle, and we’d be better if we didn’t attempt to strive for it. It makes no sense simply to characterise some type of decision as “judicial” rather than “executive” and then to allocate it automatically to judges rather than the executive (I hesitate using the term “adminstrators”, I’ll leave that for the forum admins.). It may be better to allow an executive authority to decide some matters, provided perhaps that there is some judicial control to see that procedural fairness is observed. Further there may be good practical arguments, for instance, for enabling governmental ministries to issue delegated legislation, within the framework of powers conferred on them by the legislature. But these points miss the significance of the separation of powers principle.
The principle is concerned with the avoidance of concentrations of power. What it requires above all is that each arm of government is able to check the exercise of power by others, either by participating in the functions conferred on them, or by subsequently reviewing the exercise of that power - like Cabinet confirmations.
This version of the principle is often known as the partial separation theory, more helpfully perhaps, it is also known as the system of checks and balances, since it sets up constitutional procedures under which institutions check and/or balance the exercise of power by other authorities.
But, possessing the principle - which is a good one - does not mean that we must follow the American implementation. It is precisely the American implementation that has given us headaches over the years. When the Senate asserts itself in Cabinet nominations (a check from the US Constitution), there are moans of impedance. I’m afraid that is what you get when you don’t give careful consideration to what you are copying. There are other ways to have checks and/or balances. It is not a hard and fast rule, it should not be, that we must follow the United States. We must remember that the Founding Fathers were dealing with a federal entity, with memories of royal British tyranny and the competing influences of anti-federalists. Would it not make more sense to actually look at ourselves, our political reality, our experiences, and find an implementation right of us? Oliver said we fetish-ize separation of powers. I think it is more narrow and possibly even more dangerous than that : we fetish-ize the American separation of powers - to our peril.
It is no secret that we seek to emulate other countries, there is nothing wrong with that. But we should not be afraid to look at say France or Germany. Our Presidential elections follow from the French model believe it or not. And that, I think, has been a success. Other jurisdictions (in Europeian terms), give one Justice nomination to the President, another to the Senate and another to the People in elections. We must learn to look further afield. It may be odd to our founding American patriot, but surely even he must recognise that some of the American copying leads to undesirable impasses?
Cabinet nominations is the topic of interest as I’m writing this, and I think it is helpful to think of Cabinet as “supply”. Supply is a term to do with money. A real-life government cannot live without money. A government without money is nothing. An Europeian Government without its Cabinet is nothing - no President can do everything himself. William Bagehot in The English Constitution wrote (when he says “Cabinet system” he means “Parliamentary system”):
Isn’t that destruction of the American system shocking? Shocking in its truth (today even with the debt ceiling) and shocking in its obvious application in Europeia? Let me rewrite bits of the above:
A 19th-century analysis, ladies and gentlemen, that so accurately describes our state of affairs! How remarkable!
I do not invoke The English Constitution to support a parliamentary system, rather to show the evils of copying America. A solution is, one put forward by Oliver, that there be no confirmations. But, even when there are no confirmations the President would do well to heed the advice of the Senate.
So I’ve spoken about constitutions, the separation of powers and the real relationship between the executive and the legislature. There is herein, arguments to look further afield for inspiration, to understand our political reality rather than the American reality and to accept checks wholeheartedly.
I move onto my second part, where I will look at the executive and legislature in the context of “opposition”. There is, I believe, confusion about just what “opposition” really means. To answer this I’m going to look at the role of the legislature and executive.
Often, the Senate is defined by resort to a description of what the Senate does.Adopting this functionalist perspective may have profound implications for its perceived relationship with the executive, by, for example, concentrating on the formal aspects of the Senate, especially those directly related to the various forms of its proceedings. This can, therefore, ignore or minimise other more informal, but extremely important, aspects of activity in and around the Senate, through the medium of its members, individually or in various forms of groupings. Examples of this are the constituency casework role of elected members, and their other representational activity.
Much of this activity may rarely or never touch the formal proceedings of the Senate.However it will involve elected members. It may also involve the use of Senate resources and facilities.
In broad terms, the modern role and function of the Senate, especially one in the
‘Westminster model’ mould, is now concretely two-fold:
1) a legislature, in its narrow sense of law-making processing and passing the legislation desired by (mainly) the Government,
2) a democratic forum, for holding to account the power and actions of the executive, and representing the views and interests of the people.
It is the height of dullness, narrow mindedness and idiocy I believe, to simply spout that number one on the list is as far as the Senate’s remit goes.
The legislative role is generally regarded as primary, so much so that ‘legislature’ is nowadays all but a synonym for the Senate - what a sad state of affairs. Modern Europeia is so complex and the reach of public policy so pervasive that the Senate nowadays do not engage significantly in policy-making or policy-implementing. These are regarded as the functions of the executive arm of government.
The Senate acts as a forum, providing the essential, legitimising link between government and governed.
These two roles can lead to different characteristics of behaviour within the Senate, especially in its interactions with the executive. These two functions have different, sometimes opposite impacts on the relationship of the Senate to the Executive. As a legislature, it is obviously convenient for the Executive to be actively represented within the Senate to ensure the smooth and successful passage of the business (legislative and otherwise) it requires or desires. On the other hand, when the Senate is seeking to ’hold the Government to account’ and to scrutinise its activities, the usual principles of propriety and effectiveness would seem to require the maximum degree of separation between the body doing the scrutinising and the body being scrutinised. This potential and actual tension between the two roles, and how they are played out within the Senate, is at the heart of the Senate’s dilemma as to its proper role and function, and how it can give effect to it. Can the Senate maintain, and be seen to maintain, the required degree of autonomy, especially when in scrutiny/accountability mode, while operating in a state of affairs that allows members of government to sit in the Senate?
The legislative function, has been said to have become so predominant in the practical and perceived role and function of the Senate that it may have tipped the balance at the expense of the scrutiny function.
I suppose the traditional response to this analysis is to propose reforms which seek to bolster the scrutiny function, through enhanced forms of investigation and enquiry through a committee system, or otherwise.
Sometimes, either separately or linked to this, there is a demand that the volume of legislation be increased, though, generally, reforms to the legislative function tend to seek to improve the mechanisms and procedures of the legislative process, within the Senate.Thus the Senate often tends to address the effectiveness or otherwise of its two main modes separately.
One potentially more holistic approach may lie rather in examining, not so much what the Senate does, but what it is. In this way, any contradictions of the functional analysis need not be so determining, and an equally, or even, more appropriate and coherent basis may be found for arranging the Senate’s activities and operations.
The Senate is both a place and an organisation. It is a place in the sense that it is the forum for the public debate and critique of governmental acts,and as an assembly of democratically elected representatives. The sooner Europeians realise this, the better. The sooner they move their heads out of the dull functionalist approach, the better.
Now much has been said about the “Opposition”. As with all things derived from the English, it doesn’t necessarily mean what it says on the tin. In our guise it is scrutiny that is being exercised (and I will get back to what that means soon). Do not jump to the conclusion - as so many have done - that just because it says “Opposition” that it is actively opposing and being a hindrance. The idea of the loyal Opposition in this region is extremely subtle. And it is not bad.
In this region, it seems that we’re moving towards a blend of ministerial responsibility, and scrutiny in our Senate. “Opposition” (with a lowercase o) is and will be used pejoratively to caricature the important second function of the Senate and it is important that the Senate stay within the bounds of scrutiny to avoid the bleats of hindrance.
Scrutiny and ministerial responsibility, in the Westminster model, go hand in hand. It’s difficult to explain one without explaining the other. If I could force two concepts through at the same time, I would, but alas, I’m constricted. I’ll start off with scrutiny. And for this, I am heavily indebted to the House of Commons Speaker, Mr Bercow.
Let us look at the word itself. A modern dictionary would define it as:
In Middle English it was scrutinie which actually meant the formal taking of a vote. In late Latin it was scrutinium, meaning an inquiry. In middle Latin scrutari meant to examine. In much earlier Latin, however, and thus perhaps a more authoritative reading, it came from scruta or 'rubbish'. The original scrutineers were thus impoverished types who trawled through rubbish in the hope of being able to salvage something of value from it.
There is a difference between assertive examination and passive observation. I suspect that the legislatures of NationStates democracies are either in the first camp or the second. The challenge for the Senate, therefore, is to be firmly in the first category, that of assertive examiner.
The Senate is pretty good at finding out what is going on (observation) but not so good at doing something about it (active examination). The principle of scrutiny in the Westminster model, as I’ve said ties in closely with ministerial responsibility.For now the principle of ministerial responsibility can be simply stated. Ministers are responsible to the Senate and must account to the Senate for their responsibilities and actions. It is for the Senate to decide how to give effect to that accountability.
Scrutiny is cast too often in gladiatorial terms, so that any change which the Executive might contemplate in the light of what has occurred in the the Senate is portrayed as a 'concession' or, worse, a 'defeat'.It is as if steering away from the shoals at the last moment is to be considered an act of reckless navigation, when carrying on straight into the rocks would be far more commendable.
Scrutiny demonstrates to the electorate that a Government can make a reasoned and reasonable case for its policies. Scrutiny provides Ministers with assurance (or warns of its absence). If, 'democracy is government by explanation' then scrutiny is an essential part of democracy.
Only the professional critic, who has the capacity for meaningful examination, makes himself count. The Senate needs to be an instrument of scrutiny by examination. It must be the informed critic and not the man or woman in the crowd. We are making progress in that regard, particularly in the last election, but there is more that can still be done.
And now we come to the last part of my letter: to show what the executive and legislature can do to implement this (unfortunately) bold and new approach.
Firstly, the executive, right now should make it part of our constitution in the wider sense to adhere to ministerial responsibility.
The principle of ministerial responsibility is a key feature of a parliamentary constitution where there is a fusion of legislative and executive powers. Under this system, unlike a presidential executive constitution such as that of the United States, the legislature chooses the government, in the sense the latter is formed from members of the political parties or groups which have a majority in the elected Parliament. Moreover, ministers are almost always members of the legislature itself, generally of the Chamber directly elected by the people. If a government loses the confidence of the legislature, it must resign. That is the position, at least in the case where it is defeated on a formal vote of no confidence or on a censure motion. In the United States, on the other hand, there is no constitutional contradiction in the co-existence, say, of a Congress under the control of the Republicans and a Democrat President. The President and his Cabinet are not in any sense responsible to Congress, though he will be much weaker politically if it is dominated by the other party.
However, beyond these relatively straightforward propositions, there is much uncertainty about the status and meaning of ministerial responsibility in the United Kingdom constitution. Indeed, the only clear point is that it is not a rule of constitutional law. It is a convention. One that we should follow for good government.
Broadly, under the principle (individual ministerial responsibility) a minister is responsible to Parliament for the conduct of the department of which he is the political head. That means at least that he must provide accurate information to Parliament about the department’s policies and actions, and answer questions about these matters on the floor of the House or in written answers to parliamentary questions; in particular a minister must not mislead the House. Clearly, this is a matter of political, rather than legal, responsibility. But it is far from clear when, if ever, the principle of ministerial responsibility requires a minister to resign for departmental maladministration. The sanction of resignation may be appropriate where the minister has personal responsibility for blameworthy conduct by his department. Furthermore, there are some precedents which may show the existence of a convention requiring a minister to resign for serious incompetence or maladministration within his department, whether or not he was personally at fault.
Recently a distinction has been drawn between ministerial responsibility and accountability. It is said that the minister is only responsible and potentially liable to criticism, for matters, particularly of policy, over which he was personally in charge. The duty to account to Parliament is much wider. It imposes an obligation to provide accurate and truthful information about matters of detailed administration conducted by his department, and an obligation to undertake to put matters right when mistakes have been made. Ministers should be as open as possible with Parliament, though they may refuse to provide information when it would not be in the public interest to disclose it.
It is doubtful, however, whether the distinction between ministerial responsibility and accountability is particularly helpful when it is considered that, even in the former set of circumstances-where the minister is responsible-it is most unusual for him to be under serious pressure to resign. What is important is that ministers give as much information as possible concerning their policies and the conduct of their departments, and that the House of Commons armed with that information, is able effectively to scrutinize this conduct and where appropriate criticize the individual minister. It is immaterial whether this liability and power are regarded as aspects of the traditional principle of ministerial responsibility or whether instead they fall under a separate principle of accountability.
In reality the Senate’s questions may seek factual information or press the Government to take a particular course of action. In response to these, ministers should be obliged to explain and account for the work, policy decisions and actions of their Ministries. Now, isn’t this what we’ve wanted from our government all along? Communication?
And so, I now I delve into the framework I would like to appear:
The four main options available to a Minister who has to give effect to the requirement of individual ministerial responsibility should be as follows:
• Inform and explain: The basic requirement of accountability is that ministers explain their actions and policies to the Senate, and inform the Senate of events or developments within their sphere of responsibility. Thus ministers make statements (on their own initiative, through questions, or through written ministerial statements for example), and make available detailed explanations through Senate answers.
• Apologise: Ministers who admit an error, of whatever kind, either by them personally or on behalf of their officials, should be expected to apologise to the Senate, as part of a full explanation, whether or not a resignation or dismissal is involved. The Senate should be generous and forgiving to those ministers who admit their mistakes and atone for them, especially where the mistakes are not regarded as sufficiently serious for resignation.
• Take action: A minister who is responsible for an unsatisfactory state of affairs
(whether identified by themselves or by the Senate) should be expected to take appropriate remedial steps to correct it and to ensure that it should not happen again.
• Resignation: If there is complete breakdown in the Ministry, the Minister should upon a meeting with the President, recommend his/her resignation to allow the President to bring a fresh face in.
So, Mr.President, Cabinet Ministers, make it acceptable to be held to account and be responsible for your actions. And don’t be so quick to recoil at the words “critic”, “opposition” and “conflict” - for these don’t exist not matter how much the bleating. Examiner, scrutiny and tension are better words. As there must be tension in the bed strings for the bed to be good, so there must be tension - healthy tension - in the bedstrings of government.
Opposition is not really opposition
There has been a misunderstanding, I believe, over what the Senate is doing, or in any-case what it plans to do. And in this letter I will attempt to clear up those misunderstandings.
Firstly, there needs to be re-jigging, a re-definition, of what we mean by a constitution. It is a re-definition for Europeia, but it most certainly isn’t anything new to anyone who has studied constitutions. Along with my re-definition, in anticipation of my next topic, I will look at how our documentary constitution affects the relationship between the legislature and executive in a general way.Secondly, we need to look at the legislature’s and executive’s relationship in the context of “Opposition”. Understanding the new loyal Opposition is crucial. Thirdly, I will offer guidelines on how the relationship is to blossom in this bold and new era.
On my first point we should understand that there are in fact two meanings. The first is known in Europeia: the constitution of a region is the written document or text which outlines the powers of its important regional institutions. Some constitutions may set out fundamental rights, and it is characteristic of documentary constitutions, particularly those guaranteeing fundamental rights, that they impose constraints on the powers of those institutions. Moreover, there are special procedures for constitutional amendment; a documentary constitution cannot usually be changed by ordinary legislation. This is all fine, this narrow definition does for the time being, but at this point in time it is found rather lacking. It is lacking because it is so narrowed down to a text, it doesn’t recognise the non-legal aspects of how government works - how it is constituted.
The second, much broader meaning, is that it refers to the collection of legal and non-legal rules which compose the system of government. Legal rules are those which are interpreted and enforced by the courts, while non-legal rules are the customs or conventions regarded as imposing obligations, although they are not enforceable by judges.
The most obvious question to ask, now that we have some idea of what a constitution is, is: what are constitutions for? One function of post-colonial (from regions that empire) constitutions is to give moral authority, or legitimacy, to the newly independent region. Secondly, they are drawn up to establish the fundamental principles of a new system of government subsequent to revolution. Although NationStates constitutions vary in their content and background, common purposes are obvious in the liberal constitutions. A liberal constitution is not simply a power-map, they are designed to impose limits on the exercise of authority, and to formulate basic rights and freedoms and other fundamental values for the community. As Thomas Paine put it in Rights of Man, “...government without a constitution, is power with out a right”. In other words, government under a constitution is the opposite of despotic government.
Adherence to the principle of limited constitutional government is often referred to as constitutionalism, in much the same way as liberalism denotes support for individual liberties and for minimal intervention with them by the state. These two concepts are linked, but they do have different emphases. The latter principle implies there are certain matters which are no business of the state. Constitutionalism is more concerned with the organisation of political structures to prevent the exercise of authoritarian power by an individual, group, or party. And that is what we must remember.
It is important to distinguish liberal constitutions from nominal or “facade” constitutions. Nominal constitutions are indeed simply maps of political power, describing powers of particular persons and groups. Under these constitutions, as long as it observes the procedures set out in the text, a government (or parleyment) can never said to act “unconstitutionally”. In contrast, adherence to constitutionalism means that the constitution must necessarily check absolute power; otherwise it does not deserve recognition as a proper, liberal constitution. Put another way, it can be said that there is little or no point to a constitution unless its structure and contents reflect the purposes of adopting one in place of despotic government. Otherwise the constitution is a facade to deceive citizens, or foreigners, or both.
Constitutions must act towards that checking of absolute power, which is why I’m continually amazed at the propositions of those in government to let it govern without hindrance, obstacle or check. We become a sham, institutions become toothless and we enter dangerous territory when we accept such warped ideas. How disgusting it is to put up a facade of checks as some have proposed. If one is to enter a region based on liberal constitutionalism, he must be prepared to accept that checks will exist and they should be enforced and will be. It is the road to despotic government otherwise. Those that bemoan checks should then do as they preach and head to despotic regions and autocratic governments - no doubt they’d come back with a tail between their legs.
This position of acting towards checking, received its classic formulation in Article 16 of the French Declaration of the Rights of Man of 1789:
The separation of powers is a device, or set of principles, to check absolute power and thereby foster constitutionalism. Formulated by Montesquieu in L’Esprit des Lois, he argued that if the same person or body exercised both legislative and executive powers, society would fear tyranny through the ruthless enforcement of oppressive laws by the authority which had enacted them. For the same reason, the judiciary should be independent of the legislature and executive. The framers of the US Constitution, like our framers of our Europeian Constitution, saw a division of powers between Congress (our Senate), the President (our...President), and the judiciary (our...Judiciary
) as essential to prevent the concentration of power in the hands of particular parties (factions, the term preferred by Madison, is probably a better word for us actually).Montesquieu formulated the sepration principle on the basis of his perception of the 18th-century British constitution. It was odd, misconceived and wrong. The United Kingdom constitutional arrangements did not then, and do not now, observe the separation of powers as Montesquieu understood it. In the United Kingdom, there is no separation of persons between the legislature and the government. And ministers (much like here in Europeia) are given the authority to enact delegated legislation (here in Europeia such legislation is called Ministerial Directives), in other words the executive legislates.
There is obvious difficulties with the pure separation of powers principle, and we’d be better if we didn’t attempt to strive for it. It makes no sense simply to characterise some type of decision as “judicial” rather than “executive” and then to allocate it automatically to judges rather than the executive (I hesitate using the term “adminstrators”, I’ll leave that for the forum admins.). It may be better to allow an executive authority to decide some matters, provided perhaps that there is some judicial control to see that procedural fairness is observed. Further there may be good practical arguments, for instance, for enabling governmental ministries to issue delegated legislation, within the framework of powers conferred on them by the legislature. But these points miss the significance of the separation of powers principle.
The principle is concerned with the avoidance of concentrations of power. What it requires above all is that each arm of government is able to check the exercise of power by others, either by participating in the functions conferred on them, or by subsequently reviewing the exercise of that power - like Cabinet confirmations.
This version of the principle is often known as the partial separation theory, more helpfully perhaps, it is also known as the system of checks and balances, since it sets up constitutional procedures under which institutions check and/or balance the exercise of power by other authorities.
But, possessing the principle - which is a good one - does not mean that we must follow the American implementation. It is precisely the American implementation that has given us headaches over the years. When the Senate asserts itself in Cabinet nominations (a check from the US Constitution), there are moans of impedance. I’m afraid that is what you get when you don’t give careful consideration to what you are copying. There are other ways to have checks and/or balances. It is not a hard and fast rule, it should not be, that we must follow the United States. We must remember that the Founding Fathers were dealing with a federal entity, with memories of royal British tyranny and the competing influences of anti-federalists. Would it not make more sense to actually look at ourselves, our political reality, our experiences, and find an implementation right of us? Oliver said we fetish-ize separation of powers. I think it is more narrow and possibly even more dangerous than that : we fetish-ize the American separation of powers - to our peril.
It is no secret that we seek to emulate other countries, there is nothing wrong with that. But we should not be afraid to look at say France or Germany. Our Presidential elections follow from the French model believe it or not. And that, I think, has been a success. Other jurisdictions (in Europeian terms), give one Justice nomination to the President, another to the Senate and another to the People in elections. We must learn to look further afield. It may be odd to our founding American patriot, but surely even he must recognise that some of the American copying leads to undesirable impasses?
Cabinet nominations is the topic of interest as I’m writing this, and I think it is helpful to think of Cabinet as “supply”. Supply is a term to do with money. A real-life government cannot live without money. A government without money is nothing. An Europeian Government without its Cabinet is nothing - no President can do everything himself. William Bagehot in The English Constitution wrote (when he says “Cabinet system” he means “Parliamentary system”):
Isn’t that destruction of the American system shocking? Shocking in its truth (today even with the debt ceiling) and shocking in its obvious application in Europeia? Let me rewrite bits of the above:
A 19th-century analysis, ladies and gentlemen, that so accurately describes our state of affairs! How remarkable!
I do not invoke The English Constitution to support a parliamentary system, rather to show the evils of copying America. A solution is, one put forward by Oliver, that there be no confirmations. But, even when there are no confirmations the President would do well to heed the advice of the Senate.
So I’ve spoken about constitutions, the separation of powers and the real relationship between the executive and the legislature. There is herein, arguments to look further afield for inspiration, to understand our political reality rather than the American reality and to accept checks wholeheartedly.
I move onto my second part, where I will look at the executive and legislature in the context of “opposition”. There is, I believe, confusion about just what “opposition” really means. To answer this I’m going to look at the role of the legislature and executive.
Often, the Senate is defined by resort to a description of what the Senate does.Adopting this functionalist perspective may have profound implications for its perceived relationship with the executive, by, for example, concentrating on the formal aspects of the Senate, especially those directly related to the various forms of its proceedings. This can, therefore, ignore or minimise other more informal, but extremely important, aspects of activity in and around the Senate, through the medium of its members, individually or in various forms of groupings. Examples of this are the constituency casework role of elected members, and their other representational activity.
Much of this activity may rarely or never touch the formal proceedings of the Senate.However it will involve elected members. It may also involve the use of Senate resources and facilities.
In broad terms, the modern role and function of the Senate, especially one in the
‘Westminster model’ mould, is now concretely two-fold:
1) a legislature, in its narrow sense of law-making processing and passing the legislation desired by (mainly) the Government,
2) a democratic forum, for holding to account the power and actions of the executive, and representing the views and interests of the people.
It is the height of dullness, narrow mindedness and idiocy I believe, to simply spout that number one on the list is as far as the Senate’s remit goes.
The legislative role is generally regarded as primary, so much so that ‘legislature’ is nowadays all but a synonym for the Senate - what a sad state of affairs. Modern Europeia is so complex and the reach of public policy so pervasive that the Senate nowadays do not engage significantly in policy-making or policy-implementing. These are regarded as the functions of the executive arm of government.
The Senate acts as a forum, providing the essential, legitimising link between government and governed.
These two roles can lead to different characteristics of behaviour within the Senate, especially in its interactions with the executive. These two functions have different, sometimes opposite impacts on the relationship of the Senate to the Executive. As a legislature, it is obviously convenient for the Executive to be actively represented within the Senate to ensure the smooth and successful passage of the business (legislative and otherwise) it requires or desires. On the other hand, when the Senate is seeking to ’hold the Government to account’ and to scrutinise its activities, the usual principles of propriety and effectiveness would seem to require the maximum degree of separation between the body doing the scrutinising and the body being scrutinised. This potential and actual tension between the two roles, and how they are played out within the Senate, is at the heart of the Senate’s dilemma as to its proper role and function, and how it can give effect to it. Can the Senate maintain, and be seen to maintain, the required degree of autonomy, especially when in scrutiny/accountability mode, while operating in a state of affairs that allows members of government to sit in the Senate?
The legislative function, has been said to have become so predominant in the practical and perceived role and function of the Senate that it may have tipped the balance at the expense of the scrutiny function.
I suppose the traditional response to this analysis is to propose reforms which seek to bolster the scrutiny function, through enhanced forms of investigation and enquiry through a committee system, or otherwise.
Sometimes, either separately or linked to this, there is a demand that the volume of legislation be increased, though, generally, reforms to the legislative function tend to seek to improve the mechanisms and procedures of the legislative process, within the Senate.Thus the Senate often tends to address the effectiveness or otherwise of its two main modes separately.
One potentially more holistic approach may lie rather in examining, not so much what the Senate does, but what it is. In this way, any contradictions of the functional analysis need not be so determining, and an equally, or even, more appropriate and coherent basis may be found for arranging the Senate’s activities and operations.
The Senate is both a place and an organisation. It is a place in the sense that it is the forum for the public debate and critique of governmental acts,and as an assembly of democratically elected representatives. The sooner Europeians realise this, the better. The sooner they move their heads out of the dull functionalist approach, the better.
Now much has been said about the “Opposition”. As with all things derived from the English, it doesn’t necessarily mean what it says on the tin. In our guise it is scrutiny that is being exercised (and I will get back to what that means soon). Do not jump to the conclusion - as so many have done - that just because it says “Opposition” that it is actively opposing and being a hindrance. The idea of the loyal Opposition in this region is extremely subtle. And it is not bad.
In this region, it seems that we’re moving towards a blend of ministerial responsibility, and scrutiny in our Senate. “Opposition” (with a lowercase o) is and will be used pejoratively to caricature the important second function of the Senate and it is important that the Senate stay within the bounds of scrutiny to avoid the bleats of hindrance.
Scrutiny and ministerial responsibility, in the Westminster model, go hand in hand. It’s difficult to explain one without explaining the other. If I could force two concepts through at the same time, I would, but alas, I’m constricted. I’ll start off with scrutiny. And for this, I am heavily indebted to the House of Commons Speaker, Mr Bercow.
Let us look at the word itself. A modern dictionary would define it as:
In Middle English it was scrutinie which actually meant the formal taking of a vote. In late Latin it was scrutinium, meaning an inquiry. In middle Latin scrutari meant to examine. In much earlier Latin, however, and thus perhaps a more authoritative reading, it came from scruta or 'rubbish'. The original scrutineers were thus impoverished types who trawled through rubbish in the hope of being able to salvage something of value from it.
There is a difference between assertive examination and passive observation. I suspect that the legislatures of NationStates democracies are either in the first camp or the second. The challenge for the Senate, therefore, is to be firmly in the first category, that of assertive examiner.
The Senate is pretty good at finding out what is going on (observation) but not so good at doing something about it (active examination). The principle of scrutiny in the Westminster model, as I’ve said ties in closely with ministerial responsibility.For now the principle of ministerial responsibility can be simply stated. Ministers are responsible to the Senate and must account to the Senate for their responsibilities and actions. It is for the Senate to decide how to give effect to that accountability.
Scrutiny is cast too often in gladiatorial terms, so that any change which the Executive might contemplate in the light of what has occurred in the the Senate is portrayed as a 'concession' or, worse, a 'defeat'.It is as if steering away from the shoals at the last moment is to be considered an act of reckless navigation, when carrying on straight into the rocks would be far more commendable.
Scrutiny demonstrates to the electorate that a Government can make a reasoned and reasonable case for its policies. Scrutiny provides Ministers with assurance (or warns of its absence). If, 'democracy is government by explanation' then scrutiny is an essential part of democracy.
Only the professional critic, who has the capacity for meaningful examination, makes himself count. The Senate needs to be an instrument of scrutiny by examination. It must be the informed critic and not the man or woman in the crowd. We are making progress in that regard, particularly in the last election, but there is more that can still be done.
And now we come to the last part of my letter: to show what the executive and legislature can do to implement this (unfortunately) bold and new approach.
Firstly, the executive, right now should make it part of our constitution in the wider sense to adhere to ministerial responsibility.
The principle of ministerial responsibility is a key feature of a parliamentary constitution where there is a fusion of legislative and executive powers. Under this system, unlike a presidential executive constitution such as that of the United States, the legislature chooses the government, in the sense the latter is formed from members of the political parties or groups which have a majority in the elected Parliament. Moreover, ministers are almost always members of the legislature itself, generally of the Chamber directly elected by the people. If a government loses the confidence of the legislature, it must resign. That is the position, at least in the case where it is defeated on a formal vote of no confidence or on a censure motion. In the United States, on the other hand, there is no constitutional contradiction in the co-existence, say, of a Congress under the control of the Republicans and a Democrat President. The President and his Cabinet are not in any sense responsible to Congress, though he will be much weaker politically if it is dominated by the other party.
However, beyond these relatively straightforward propositions, there is much uncertainty about the status and meaning of ministerial responsibility in the United Kingdom constitution. Indeed, the only clear point is that it is not a rule of constitutional law. It is a convention. One that we should follow for good government.
Broadly, under the principle (individual ministerial responsibility) a minister is responsible to Parliament for the conduct of the department of which he is the political head. That means at least that he must provide accurate information to Parliament about the department’s policies and actions, and answer questions about these matters on the floor of the House or in written answers to parliamentary questions; in particular a minister must not mislead the House. Clearly, this is a matter of political, rather than legal, responsibility. But it is far from clear when, if ever, the principle of ministerial responsibility requires a minister to resign for departmental maladministration. The sanction of resignation may be appropriate where the minister has personal responsibility for blameworthy conduct by his department. Furthermore, there are some precedents which may show the existence of a convention requiring a minister to resign for serious incompetence or maladministration within his department, whether or not he was personally at fault.
Recently a distinction has been drawn between ministerial responsibility and accountability. It is said that the minister is only responsible and potentially liable to criticism, for matters, particularly of policy, over which he was personally in charge. The duty to account to Parliament is much wider. It imposes an obligation to provide accurate and truthful information about matters of detailed administration conducted by his department, and an obligation to undertake to put matters right when mistakes have been made. Ministers should be as open as possible with Parliament, though they may refuse to provide information when it would not be in the public interest to disclose it.
It is doubtful, however, whether the distinction between ministerial responsibility and accountability is particularly helpful when it is considered that, even in the former set of circumstances-where the minister is responsible-it is most unusual for him to be under serious pressure to resign. What is important is that ministers give as much information as possible concerning their policies and the conduct of their departments, and that the House of Commons armed with that information, is able effectively to scrutinize this conduct and where appropriate criticize the individual minister. It is immaterial whether this liability and power are regarded as aspects of the traditional principle of ministerial responsibility or whether instead they fall under a separate principle of accountability.
In reality the Senate’s questions may seek factual information or press the Government to take a particular course of action. In response to these, ministers should be obliged to explain and account for the work, policy decisions and actions of their Ministries. Now, isn’t this what we’ve wanted from our government all along? Communication?
And so, I now I delve into the framework I would like to appear:
The four main options available to a Minister who has to give effect to the requirement of individual ministerial responsibility should be as follows:
• Inform and explain: The basic requirement of accountability is that ministers explain their actions and policies to the Senate, and inform the Senate of events or developments within their sphere of responsibility. Thus ministers make statements (on their own initiative, through questions, or through written ministerial statements for example), and make available detailed explanations through Senate answers.
• Apologise: Ministers who admit an error, of whatever kind, either by them personally or on behalf of their officials, should be expected to apologise to the Senate, as part of a full explanation, whether or not a resignation or dismissal is involved. The Senate should be generous and forgiving to those ministers who admit their mistakes and atone for them, especially where the mistakes are not regarded as sufficiently serious for resignation.
• Take action: A minister who is responsible for an unsatisfactory state of affairs
(whether identified by themselves or by the Senate) should be expected to take appropriate remedial steps to correct it and to ensure that it should not happen again.
• Resignation: If there is complete breakdown in the Ministry, the Minister should upon a meeting with the President, recommend his/her resignation to allow the President to bring a fresh face in.
So, Mr.President, Cabinet Ministers, make it acceptable to be held to account and be responsible for your actions. And don’t be so quick to recoil at the words “critic”, “opposition” and “conflict” - for these don’t exist not matter how much the bleating. Examiner, scrutiny and tension are better words. As there must be tension in the bed strings for the bed to be good, so there must be tension - healthy tension - in the bedstrings of government.
