John Osmond looks at two new books that explore our constitutional future
It has often been observed that the major changes that have taken place to the United Kingdom’s constitution over the past decade or so have occurred opportunistically and in response to political pressures, rather than in accordance with some coherent strategy or vision of what might promote good governance, say, or even democracy. It is a virtue of Vernon Bogdanor’s The New British Constitution that he provides an idea of what such an overarching perspective might look like. For when examined together, the changes that have taken place are far reaching and, indeed, amount to the ‘new’ constitution that he suggests. As he puts it, the constitutional reforms of the years since 1997 cannot be understood in evolutionary terms: “They represent nothing less than a revolution in our constitutional affairs, a radical discontinuity from what has happened before.”
The process began with the United Kingdom’s accession to the Common Market in 1973, significantly for the unfolding of this story confirmed by referendum in 1975. There followed the devolution debates of the late 1970s and the eventual establishment of the devolved institutions in the late 1990s, again confirmed by referendums. Maybe more than anything else it is the institutionalisation of referendums that has underpinned the greatest change in the United Kingdom’s constitution. In the case of Wales they promoted the discovery and provided the bedrock of a distinctive sovereignty.
The House of Lords Act in 1999 removed all but 92 of the hereditary peers from the Upper House. Meanwhile, the Human Rights Act of 1998 signalled the emergence of the judiciary as the third main element of the ‘new constitution’, alongside the legislatures and executives and an emerging separation of powers within what was undeniably becoming a quasi-federal state. This was no longer a unitary state, nor indeed a union state but, as James Mitchell perceptively describes in his Devolution in the UK, “a state of unions”.
There have been many other changes of a constitutional character, including proportional representation for elections to the devolved assemblies and the European Parliament, the Freedom of Information Act (2000), the creation of the directly elected Mayor of London (1998), and the Political Parties, Elections and Referendums Act (2000). Even the granting the Bank of England independence to set interest rates, Gordon Brown’s first act when he became Chancellor of the Exchequer in 1997, could be regarded as a constitutional change.
Certainly the linking theme of all of these innovations has been the dilution of the sovereignty of the Westminster Parliament. This was the essential keystone of what had been understood as the ‘old’ constitution. In it Westminster had the “right to make or unmake any law whatever”, as the great constitutional theorist A.V. Dicey put it in his 1885 classic account An Introduction to the Law of the Constitution. This was explained to me in my university ‘British Constitution’ course in 1965 as meaning Parliament could do anything “save change a man into a woman, or a woman into a man”.
Well Parliament is much diminished now, and not just by the formal constitutional changes charted in these two books. It has always been primarily an English institution, and not just because England comprises some 84 per cent of the UK’s population, but culturally as well. Rather than a democracy in which the people are sovereign, England operates as a Parliamentary nation. The focus for England’s national identity is the House of Commons with its Members comprising a kind of ‘squirearchy’. But the end of deference, underlined by popular outrage at the expenses scandal, has put paid to much of that.
In this context it is interesting that Bogdanor relies on the House of Commons to provide an answer to the Britishnesss debate. As he notes, there is good deal of agonising amongst unionists that the ties that bind Britain are loosening, typified by Gordon Brown’s attempts to associate British identity with fair play and other universal values that could apply in any Western liberal democracy. Much more straightforward, says Bogdanor, to say that Britishness simply rests in people “wishing to be represented in the United Kingdom Parliament at Westminster and voting for parties which favour such continued representation”. If this is indeed the case it is significant that the next phase of devolution in Wales, with the National Assembly acquiring full legislative powers, is likely to be accompanied by the Conservatives insisting on a reduction of Welsh MPs at Westminster from 40 to 30.
The logical endpoint of all these changes would be a written constitution for the United Kingdom. However, Bogdanor finds there is no consensus about what should be written down. There is no agreed view, for example, on how the House of Lords should be reformed. There is no settled opinion on the role of referendums, despite their having become an essential component of constitutional change. There is no consensus on the right electoral system for the House of Commons. Above all, there are ongoing arguments about the devolution process and, in particular, relationships between the devolved institutions and Westminster, especially over money.
These debates are important to us in Wales because to a large extent they will determine how our own constitutional fortunes will unfold. Bogdanor observes that while the plethora of constitutional reform has redistributed power within the UK state, it has “redistributed power between elites, not between elites and people. It has distributed power ‘downwards’ to politicians in Edinburgh, Cardiff, Belfast and London, ‘sideways’ to the life peers in the House of Lords and ‘sideways’ to the judges interpreting the Human Rights Act.” However, the “crucial weakness” of the constitutional reform programme is that, so far it “has not shifted power from the politicians to the people”. Apart from some improbable experiments with direct democracy such as citizens juries, Bogdanor’s main constitutional recipe is to press the case for the single transferable vote form of proportional representation. He argues cogently that this would put more power in the hands of the voter to support candidates within parties as well as between them. Yet, barring the forthcoming general election resulting in a hung Parliament and the Liberal Democrats holding the balance of power, there seems little chance of any early implementation of STV however desirable that might be.
In these circumstances the next phase in the story of the United Kingdom’s ‘new’ constitution will be driven by Scotland. Here James Mitchell who predicts an “ever looser union” is a better guide. He suggests that, perhaps paradoxically, it is England and English culture that that may be the driving force. For the English mind, let alone its political class have little inclination to shift from a centralised to an internally more federalised structure or even a more formalised federal relationship with the rest of the United Kingdom. Overall, this remains the supreme irony of the whole constitutional reform agenda, that so much of it has been of such little consequence for the English. Generally speaking, and despite the profundity of many of the constitutional changes that have taken place, they have carried on regardless. For instance, all the polls suggest that the English remain totally phlegmatic about the prospects of Scottish independence.
As Mitchell concludes, “The probability of greater policy divergence, institutional diversity and differences in the party systems across the UK all suggest that over the long term diversity within this state of unions will become more pronounced, more entrenched.” Yet he also concludes that this may not necessarily lead to break-up, for even if one part of the UK were t
o secede, economic and social relations would still remain close. Maybe after all, as Mitchell also suggests, this debate need not be that apocalyptic. For whatever happens – and despite the increasingly siren voices of the Eurosceptics – we are all likely to remain part of the ‘ever closer’ European Union.
