Constitutional convention for the UK?

I am grateful to Unlock Democracy for the invitation to deliver this lecture.  It gives me the opportunity to explain why I think that now is the right time for a Constitutional Convention for the UK to be appointed.

Unlock Democracy, and its predecessor Charter 88, by their very existence remind us that constitutional change and reform are not matters for the political classes alone.  Politicians act for and on behalf of the people we represent, but we must always be reminded that our debates on these matters affect the most fundamental interests of our citizens, and their voices need to be heard too.  I pay tribute to Unlock Democracy for its tireless efforts to reassert that principle.

I want to lay out my argument under three broad headings.

First, a review of what I call “This Constitutional Moment”: where have we reached in the matter of constitutional reform in the UK, and why is now the right time for the appointment of a constitutional convention?

Secondly, why a convention rather than the time-honoured mechanism of a Royal Commission on the Constitution, such as we had with the Kilbrandon Commission in the 1970s?

But thirdly, having I hope made the case for a Convention, I want to suggest that there is a role that a Royal Commission could play, once the Convention has done its work.

This Constitutional Moment

It is worth our reflecting on just how far we have come in the last fifteen years, since the Labour government was elected in 1997, in the matter of constitutional reform.  This audience will know the story better than most, and so there is no need to rehearse it at length.  I mention just three of the major constitutional reforms that took place under Labour and which are now embedded in our constitutional arrangements.

The effective incorporation of the European Convention on Human Rights into our domestic law via the Human Rights Act 1998 has transformed both the substance of our law and the language of our politics, in a way that I regard as wholly beneficial for our citizens.  Making that argument in full would need a lecture of its own, but suffice it to say today that I regard with considerable scepticism the enterprise, with its own Commission no less, to detach ourselves in some way from the Convention and the Human Rights Court, and instead to create a British Bill of Rights.  As I made clear to the Commission when they visited Wales last year, we can see no advantages in that, and if the creation of such a Bill served in time to destabilise the hard-won consensus on linguistic rights in Wales, that would represent a major step backwards for us.

Secondly, I mention Freedom of Information. Inconvenient for governments and public authorities, without a doubt.  But the legislation has ushered in a new age of transparency in our public administration and political system, which enables improper behaviour to be identified and rooted out, to the greater benefit of our democracy, and that affair in turn has led to further debate, on the regulation of lobbyists, and possible new arrangements for recall of MPs, which we are watching closely, although they are perhaps matters of less immediate concern in Cardiff Bay.

Thirdly, and most obviously important for me personally, has been the introduction of devolution. Scotland has enjoyed generous legislative and executive devolution since 1999.  Wales had executive devolution from the same date, and following the successful referendum in 2011, now enjoys a substantial measure of legislative devolution too, although the new arrangements are still not without their critics.  But after a shaky start, perhaps, we can be absolutely confident now that devolution represents the settled will of the Welsh people.

And, in this context of devolution and on this particular day, 12 July, the traditional date for commencement of the marching season, I should also refer to the progress made on constitutional matters in Northern Ireland over recent years.  As someone with close family connections to Ireland, I take particular pleasure in that progress, which has reached a new level following Her Majesty the Queen’s immensely successful, and historically important, visit to Ireland in 2011, and the no less historic events of reconciliation during her visit to Northern Ireland just a few weeks ago.

So there has been substantial reform, and considerable progress, across a number of constitutional fronts.  Of course, it has not been all good news; there remains unfinished business, on reform of the House of Lords, which I shall come back to later, and on the regulation of political party funding and expenditure, where I understand there continue to be discussions, but on which it will clearly be difficult to reach agreement.

And then there has been at least one outright failure, the botched reform of the electoral arrangements for the House of Commons.  I voted in the AV referendum in support of making those changes, and I very much regret the outcome, which has put that particular matter onto the back-burner for some years to come.

So, that is where we are.  Even on that account, there remains much still to be done to secure a UK constitution fit for the 21^st century.  But it is my argument that the challenges immediately ahead are at least as great as those that have been addressed thus far, and it is in that context that I have raised the issue of a constitutional convention.

What are those challenges?  Fundamentally, they are about the territorial constitution: how are the different territories (I deliberately use neutral language here) of the UK to be governed, and how are their governments and legislatures to relate to each other within the UK?

Note please that I emphasise “within the UK”.  I said earlier that devolution was now the settled will of the Welsh people.  In common with the vast majority of the people of Wales, I have no interest in independence for Wales.  Support in Wales for independence was never significant even before 1997, and since devolution it has declined further; we will happily remain within the UK family.

Furthermore, I have made clear that while decisions on their national future must be a matter for the people of Scotland, we in Wales would enormously regret any decision by the Scots to opt for independence.  The UK that the departing Scots would leave would be fundamentally unbalanced.  It would be unbalanced demographically – England would constitute nearly 92% of the population of the new state, leaving Wales and Northern Ireland to divide up the remaining 8% between us.  As importantly from a Welsh perspective, a residual UK would be unbalanced politically; at present we share with the Scots an approach to economic and social policy questions which is broadly social democratic/ communitarian in its ethos, whereas the inclination of the current UK is for more market-based approaches as far as England is concerned.  Losing the Scots would significantly weaken the Welsh voice in these debates.

Returning then to the fundamental question, how are the different territories of the UK to be governed, and how are their governments and legislatures to relate to each other within the UK?  I can offer a broad vision, but, as I shall argue in a moment, it will need a constitutional convention to flesh out the detail.  What is that broad vision?  It is of a Kingdom which is politically diverse, looser, and combines several centres of democratic accountability.

Taking those elements in turn, it will be “politically diverse”, because we have moved away from the early years of devolution when – and here I leave Northern Ireland aside, as politically sui generis – Labour governments operated at UK, Scotland and Wales levels simultaneously, and any issues of contention could be smoothed over on a relatively informal basis.  Now, and as I expect will be the case in the future, the position is very different, and greater attention needs to be focused on more formal mechanisms of inter-governmental machinery, such as the Joint Ministerial Committee, to manage these sometimes complex relationships. And that will be so whether or not Scotland moves to independence.

The Kingdom will also be “looser”, in my view, by which I mean that the process of devolution in each part of the UK will continue.  The Prime Minister has already said that, in the event that the Scots vote No in their independence referendum, the powers of the Scottish Parliament can be re-examined, and by implication expanded further.  In Wales, the UK Government has appointed a Commission, under the chairmanship of Paul Silk, a former Clerk to the National Assembly, to review the devolution settlement and make recommendations as to the respective responsibilities of Westminster and Cardiff Bay as legislatures for Wales.

It would be surprising if that Commission recommended no change, and it will be pressed by some interests to recommend a new devolution settlement for Wales, one closer in form, and perhaps substance, to that which the Scots have enjoyed since 1998.  Be that as it may, the Welsh Government has recently completed a consultation exercise on whether a separate Welsh legal jurisdiction, analogous perhaps to that in Northern Ireland, should be established, and we will be analysing the responses to that over the summer.

Finally, the Kingdom will “combine several centres of democratic accountability”.  Why is it important to make this apparently obvious point?  Some of the early difficulties with devolution appear to me to have originated in a somewhat reductivist interpretation in Whitehall of the meaning of devolution itself.  On that interpretation, devolution provided (and continues to provide) machinery for the local adjustment or amelioration of “national” policy, which is of course determined by the UK Government.  Thus it is about the better governance of the devolved territories, which must ultimately give way to the wider “national interest”, as determined by Whitehall.  We see this particularly in certain Whitehall Departments’ approach to how the UK’s line is presented in European Councils.

But for me, devolution is not about how each of Wales, Scotland and Northern Ireland are separately governed.  Rather it is about how the UK is governed, not by one but by four administrations, and which are not in an hierarchical relationship one to another.  And the consequence of that is the administrations of all four territories, including the UK Government in respect of England, have their separate responsibilities and accountabilities, which must be recognised and respected by all the other partners, as part of the joint enterprise of the governance of the UK.

So, a Kingdom which is politically diverse, looser, and combines several centres of democratic accountability: that is my broad vision of where we should be going.  How do we get there?  That takes me to the need for a Constitutional Convention, and why we need to set this up now.

A Convention or a Commission: and Why Now?

The driving force for me is the developing constitutional debate in Scotland.  Those of us who are actively committed to the UK cannot pretend that, if Scotland goes, the remaining truncated Union could simply carry on as before.  In reality, a great deal would have changed and the long-term consequences might be profound.  So, rather than simply allow events in Scotland to unfold, and to react to whatever happens when it happens, I believe that political and civil society across the UK should be talking now about what kind of UK we want to see  – and I’ve just given you my view of that.

So I have proposed the establishment of a Convention on the Future of the United Kingdom, primarily tasked with examining the full context of relationships between the Devolved Administrations and the UK Government, bearing in mind what I just described as the joint enterprise of the governance of the UK.

I first floated the idea of a Convention earlier this year, and it is pleasing that it has gained some support.  The House of Commons Political and Constitutional Reform Committee has instituted an Inquiry into the matter, and I had the opportunity this morning to give oral evidence to the Committee. And I was interested to see that the Alternative Report produced by members of the Joint Parliamentary Committee examining the UK Government’s proposals for reform of the House of Lords also saw merit in the idea of a Constitutional Convention to re-examine that issue.  If such eminent constitutional commentators as Professor Lord Norton of Louth and Lord Hennessy of Nympsfield can support such a proposition, I may not be entirely off target!  Reform of the House of Lords could well of course form part of the convention’s remit.

A number of questions then arise.  First, why a Convention, rather than a Royal Commission? Secondly, who would participate?  And third, why now?

I offer three reasons for a Convention, in preference to a Royal Commission.  First, I think there is force in the criticism that the constitutional reform agenda hitherto has been too much a matter for discussion among the political classes narrowly conceived, and with too little wider public engagement.  I said at the outset that, while politicians act for and on behalf of the people we represent, we must always be reminded that our debates on these matters affect the most fundamental interests of our citizens, and their voices need to be heard too.  A Royal Commission, constituted of the “great and good” and relying on traditional methods of taking evidence, does not seem to me to suit the spirit of the times, which is characterised by a perhaps understandable distrust of established institutions and establishment figures.  We need to broaden out the debate.

This is not a revolutionary proposition, it has been done before.  The success of Scottish devolution from its outset is surely linked to the work done over several years in the 1990s by the Scottish Constitutional Convention, which managed to build a consensus both on the case for devolution and how it should work.  We need to replicate that approach.

My second reason is linked to the first.  I have said that I would like the Convention to be primarily tasked with an examination of the relationships between the various administrations within the UK. If we think for a moment about how the various devolution settlements have developed, the policy conversations have tended to take place in a series of bilateral exchanges between the UK Government and the relevant devolved administration, to some degree without reference to how devolution is developing in other parts of the UK.

Perhaps that is inherent to the nature of devolution, as compared say to a state built on federal principles.  If you are creating a federal constitution, it would be natural that representatives of all the states should come together and agree amongst themselves what limited range of powers should be conferred “upwards” on the federal authority; so all states would participate in that discussion.  Under devolution, however, power is handed “downwards” from the centre; and there need be no assumption that the extent and scope of power devolved from the centre to one territory should necessarily be the same as that afforded to another.  So it is that we have ended up with what I have called the UK’s “asymmetric quasi-federalism”, where the powers of the various devolved institutions differ one from another.

That may have sufficed in the past, but I do not think we can proceed like that in the future.  We need to go beyond bilateralism as a technique of constitutional development, and engage a wider set of parties around the table.  Take the Scottish case. If the Scots decide to stay within the UK, we know that there will be adjustments, by which I mean more powers, for the Scottish Parliament.  The candidates for the new settlement include the so-called “devo max” and “devo plus”, either of which would represent a radically different position for Scotland within the Kingdom.  Could that simply be a matter for discussion and agreement between the Scots and the UK Government, or should the other members of the UK club be involved as the terms of membership of another of them are renegotiated?

I believe that all parts of the UK should be involved in that discussion, and I think, from what Lord Wallace of Tankerness said in the House of Lords during the passage of the Scotland Bill, that the UK Government agrees with me.  That will require something like a Constitutional Convention, if there is to be a meaningful engagement.  Although devolution doesn’t have to be symmetrical, it does need to be logical and fair.

My third reason for favouring a Convention over a Royal Commission is illustrated by the recent emergence of proposals for House of Lords reform. I find it totally inexplicable that these should have been developed entirely without regard to the UK’s territorial constitution.  In other countries, the US Senate being the most obvious example, the upper House of a legislature contains within it representation from all parts of the state, with representation not rigidly tied to electorate data but the House itself serving as a unifying institution within the state.  I do think that a territorial dimension to the membership of the House of Lords could be a way of ensuring a strong voice for each of the four countries at the UK level, without diminishing England’s voice (as the Commons membership would continue to reflect population shares).

In the same way, it is surely very curious, at a time when the prospect of Scottish independence represents an existential challenge to the UK, that a separate Commission is set up to examine the so-called West Lothian Question.  The Question is about what future role MPs from Scottish constituencies should play with respect to exclusively English legislation, if there is such a thing.  Surely this is something, like the membership of the House of Lords, that needs to be addressed in the wider constitutional context of the future of the United Kingdom.  A Constitutional Convention would be well-placed to address these issues in an holistic way; it is obvious that Whitehall cannot.

So, I argue for the appointment of just such a Convention.  Who should participate in its work? Here I think we can usefully turn to the alternative Report on House of Lords reform which I mentioned earlier.  Paragraph 5.40 of that Report provides a helpful, albeit non-exhaustive, list of the sorts of representatives who might be involved.  In addition to representation from both Houses of Parliament, there should be representation from the devolved Parliament/Assemblies; political party representatives; representatives of local government; and representatives of business, people at work, the third sector, and faith groups, respectively, together with specialist academic constitutional and political experts.  While no doubt there would be arguments about exactly who should represent each relevant interest, that sort of approach seems broadly to me to be along the right lines.

One major advantage of establishing a Convention with this sort of membership would be to enable a more specifically English contribution to the debate. The discussions in recent years on constitutional matters within the UK have been primarily, and perhaps disproportionately, about the governance of Scotland, Wales and Northern Ireland.  The English voice has yet properly to be heard.  It is not for me to say what arguments about the governance of England should be advanced, but I can certainly regret the lack of an English contribution thus far, and urge that we find a way to rectify that.  A Convention with the sort of membership I have described could provide the mechanism to achieve that.

Then we come to the question of when the convention should begin its work.  My answer to that is as soon as practically possible.  The reason for this goes back to my concern about the future constitutional position of Scotland within the United Kingdom.  As I said, I am anxious that those who are committed to the UK should be proactive in developing a vision for the UK in which Scotland can see its rightful place, without our waiting for the outcome of the referendum to be known.

Unfortunately, the Prime Minister does not share that view.  While he is open to a comprehensive conversation about the kind of Union we want to see, he considers that that should take place only after the Scottish referendum debate has come to a conclusion.  He believes that we need first to focus on winning the case for the Union in Scotland.

I do not agree.  Unless an attractive alternative for the UK’s constitutional future, based on partnership between the different parts of the UK, and developed by the sort of broad-based Convention I have described, is developed ahead of the referendum, then from a unionist viewpoint it creates a risk that could easily be avoided.

But if a Constitutional Convention can be appointed soon, I believe there is still time for the necessary work to be done.  I don’t believe that Scotland wishes to vote for independence, although I accept that a single question referendum will take place in 2014.  It strikes me that a single question gives clarity whereas a dual or multi question referendum carries the danger of muddying the waters unless the consequences are fully explained and understood.  I do believe though that a more comprehensive and clearer devolution settlement would gain support across the UK, providing greater constitutional stability.

So, in summary, I believe that we need a Constitutional Convention to be appointed, and we need it to begin its work as soon as practically possible.  Its focus should be the full context of relationships between all of the Devolved Administrations and the UK Government, on the basis of a shared responsibility for the governance of the UK.  And I can assure you that the Welsh contribution to that debate will be positive and constructive.

A Place for a Commission?

In making my case, I explained why I preferred the model of a Constitutional Convention rather than a Royal Commission.  But now I want to offer one final suggestion, which brings the idea of a Royal Commission back into play.

In 1969, in what, with the benefit of hindsight, we can see was a remarkably far-sighted decision given the importance we now attach to “green” issues, the Wilson Government appointed a new Royal Commission on Environmental Pollution. Very unusually, it was deliberately constituted as a standing Royal Commission, rather than a body with “task and finish” responsibilities as is normally the case.  Indeed, the Commission continued in existence for over forty years until being recommended for closure in 2010 as part of the UK Government’s programme of reform of public bodies.

That Commission’s work was very well-respected. Operating entirely independent of governments of whatever political stripe over the years, and with a membership of experts drawn from a wide range of professional disciplines, it produced a series of weighty and influential reports, drawn from a work programme for which it was itself entirely responsible.  Its demise has been the source of some regret.

My thought is, that if there is any subject on which it would be beneficial to create a new standing Royal Commission, it is the constitution of the United Kingdom.  In contrast with what I see as the urgent need for a Constitutional Convention, I do not suggest that creating a standing Royal Commission on the Constitution be done quickly.  Instead, what I have in mind is that, once the internal reconstruction of the British state following the Scottish referendum and the report of the Silk Commission has taken place, which will need to happen in the lifetime of the next Parliament, we will then need an independent advisory body of weight and authority to keep the workings of the constitution under review on a continuing basis.

To suggest the creation of such a body is not at all to question the worth of existing institutions.  I do not, in particular, doubt the value of the work of the Constitution Committee of the House of Lords, which has earned for itself in a relatively short space of time a secure place in our constitutional arrangements.  But the Committee’s programme of work is, understandably and properly, largely driven by the events of the day and the exigencies of the UK Government’s legislative programme.  My proposal is for a body which, independent of governments but authoritatively able to advise them, can examine and report on constitutional matters on a continuing basis over time.  But first we need to put a new set of constitutional arrangements in place, and we need the constitutional convention for that!

Conclusion

In concluding, may I repeat my thanks to Unlock Democracy for the kind invitation to deliver this lecture.  I hope that what I have said touches at least in part on matters of interest and importance to you, and I hope that we can continue the debate.

Thank you very much, diolch yn fawr.