The Coalition’s constitutional strategy – is there one?

Does the Coalition government have “any evident constitutional strategy”? This is the question the editors of LSE’s British Politics and Policy have asked me to address. The way the question is put – whether such a strategy exists, rather than whether it will work – suggests the Coalition does not have a coherent constitutional strategy.

It is certainly engaged in a lot of constitutional changes that may have far-reaching consequences for the British state and constitution. Hitherto, all new governments trod carefully in making changes to the way the UK is governed, until the first New Labour government of 1997-2001 drove through very rapidly a set of major reforms – which experts before it got to power had said would take a decade or more to implement. At the same time it refused to offer any overall synthesis of how they might be connected – any strategy. Now the Coalition has declared decisive change to be its special calling card. So the obvious comparison to try and get a measure of this is with the first years of Blair.

New Labour’s Shape-Shifting reforms

New Labour’s initial list was impressive: A parliament in Scotland, an Assembly in Wales and a Mayor in London (with the second largest direct individual mandate in Europe, after the presidency of France), all legitimised by referendums; the Human Rights Act (HRA); the removal of all but 92 hereditary peers from the Lords breaking its control by the aristocracy; independence for the Bank of England; Freedom of Information…. But there was no move towards a “new constitutional settlement” as promised by John Smith, Blair’s predecessor as Labour leader.

The result was a disintegrative process of that broke the internal integrity of the old regime without replacing it. While Labour’s programme can be described as “piecemeal” in the sense that it consisted of great lumps of change, it was not piecemeal in the usual sense of this term when applied to describe change in Britain, namely slow, accumulative and partial adaptation of what exists. On the contrary, new institutions and principles (to which can be added the Good Friday agreement) were inserted into a spatchcocked system. This was done in the name of modernisation. The spirit behind it was what I described in 1999 as “corporate populism”.

Below the headlines, and especially after 2001, in order to counteract the disintegrative impact and integrate anew the machinery of a single, centralised state, a surreptitious and hideously expensive “transformation” of government programme was launched without public or parliamentary debate.

This planned administrative integration of UK government was going to be topped off with an ID Card that would manage the identity of all Britain’s subject-citizens, decorated with a pledge of British values. Dissolution of the UK would be prevented both administratively and aspirationally, while a pre-emptive anti-terror security programme that included extended detention without charge would defend the updated UK regime. In this way the potentially profound changes such as the HRA and national parliaments would be marginalised and their potential energy contained.

In terms of personalities, the most formidable intellectual driver of both sets of reforms, the ones that broke apart the old constitution as well as the machinery of control summed up in three letters ‘DBS’ for database state, was Gordon Brown. When he finally got to No 10 in 2007 he opened his premiership with a promise of constitutional “renewal”. He realised that the government needed to “restore public trust”. To this end he floated the idea of a written constitution – not to release energy but rather to ensure control and secure for himself a father-of-the-nation status. In this way he hoped to codify the New Labour state.

New Labour and the Coalition Compared

If that was New Labour’s ‘strategy’ how are we to judge the constitutional measures of the Coalition? Like Labour it is acting fast to push through an ambitious set of changes. It does not seek “renewal”. Perhaps its catchwords are “reversal”, “replacement” plus “strategic reforms”. Will this emerge as a coherent strategy? Or will it too combine disaggregating change alongside an attempt to rein in their impact?

Reversal

The first big change the Coalition will be responsible for is in one sense negative and yet also wholly positive. It will pass a Freedom Bill that will catalogue and roll back many of the attacks on personal liberty and the DBS that New Labour introduced. (Not all of them, the intrusive and arbitrary Digital Economy Act looks set to remain in place, as does the NHS “spine” database). One positive function of what is rightly being dubbed The Great Repeal Bill will be to reveal what had become a coherent programme under Labour, but was never broadcast as such. The Coalition is blowing Brown’s laborious strategy of Britishness and DBS centralisation out of the water.

This welcome reversal of Labour’s policy is relatively principled as it emerges from a convergence of concerns between the two Coalition parties. To what extent does it have the strength of a strategy? There are three worries.

First, it is not grounded in a shared philosophy, such as human rights, citizenship or the need for a basic law. Tradition will be appealed to, but these days this is a weak imprimatur. Without a constitutional framework, liberties will be restored but for how long?

Second, the people with the passion, audacity and sacrifice who set the Freedom Bill in motion are being sidelined, in particular David Davis MP who walked out of the Commons in 2008 when it was suborned into passing the Bill permitting 42 days detention without charge (later defeated in the Lords). He linked its despotic potential to the rise of the database state and the ubiquity of unlicensed CCTV and the surveillance society. One consequence of his campaign was the emergence of the Convention on Modern Liberty. Held in February 2009 (I was its Co-Director) it saw Tories and Lib Dems sharing platforms in public in the run-up to the election, as the draft of the Liberal Democrat draft Freedom Bill was published by Chris Huhne to coincide with the gathering. Nonetheless, the actual Freedom Bill is being separated from the politician who most personifies its values – and personification is the closest we get to entrenchment in Britain.

Third, while the Coalition’s reversal of Labour’s erosion of liberty can be defended in traditional terms, the character of individual influence and voice is being transformed by digitalisation and the micro-chip. We need a positive concept of ‘modern liberty’ that builds on the good side of this huge change while defending us from the dangers, whether exercised by corporate or state power. The Coalition has so far shown no sign of committing itself to this challenging process.

Thus, while it will thankfully reverse the immediate threats to liberty, what will be rescued will not be embedded in popular support, or entrenched in a constitutional framework, or developed in a contemporary fashion. Meanwhile the deep state awaits its chance to resurrect the network of official control it hankers after, perhaps thanks to the next terrorist outrage.

Replacement

Among the constitutional measures the Coalition is planning are:

1. The replacement of the voting system from FPTP to AV

2. The replacement of the current 650 constituencies by 600 of broadly equal population

3. The replacement of a mostly appointed House of Lords by an eventually elected Senate

Before I glance at these more closely, a note on how we should describe them. Today the contrast of reform or revolution has become a mind-numbing trope. The three replacements are reforms in the sense of being changes. But what matters is the kind of change they are. I have been asked a question about strategy. A strategic reform can be defined as something that alters the spirit and character of what exists and does more than simply update it or replace one part with another in an otherwise unchanging whole. It creates something at once recognisably related to the past – it is a re-form – yet also new. For example, lowering the voting age from 21 to 18 is not a strategic reform but merely an incremental change, whereas ‘votes for woman’ changed the nature political campaigns and was a genuine or strategic reform. Defined in this way a strategic reform of the constitution means a change that alters the lived relationships of political power, such as between individuals and the state or between different parts of the state, so that the character of the way we are governed is different. The Scottish Parliament and the Human Rights Act were strategic reforms. There was Scottish government before and there was juridical assessment of rights. But the new Acts created a new set of relationships and shifted the entire balance of power. (Only shifted, they were not revolutionary. Whereas Scottish independence would be.) This is a broad-brush distinction and there are grey zones but I hope the definition is clear. In my view, the three replacements are changes to the existing order that alter the way it is administered rather than the way it works or is experienced, they are not strategic reforms.

1. Neither of the Coalition partners wanted an AV referendum: it was arrived at as the lowest common denominator to secure an agreement. A V remains a majoritarian system with single member constituencies and does not address the clearly improper outcomes of the UK’s current system (see below). It will do something to reduce the number of safe seats and ensure that more people’s vote are counted in a way that might make a difference. That’s excellent, in my personal view, but that’s all.

2. That the voting system has to be changed is undoubtedly the case as it currently favours the Labour Party by around 4 to 6 per cent, a staggering fact that permitted it to govern with a large parliamentary majority after the 2005 election despite having secured only 35 per cent of the vote (giving the UK perhaps the least democratic electoral system in Europe). Had the Coalition started from this fact and demanded an accurate translation of votes into seats it would have had to embrace proportionality. Instead, it hopes to diminish the bias by cutting the number of MPs and imposing uniform constituency size, thus especially diminishing representation from Wales and Scotland, which favour Labour. However, this will oblige it to impose from the centre an arithmetical redrawing of constituencies that may obliterate historic boundaries and ignore geography such as islands, rivers and city limits. It is a blatantly unconservative approach, disregarding the local, particular and organic. In this sense it is a radical break from the past.

3. While the Commons was allowed to debate (but not benefit from pre-legislative scrutiny) these two replacements, a cabal of party leaders is formulating a plan to replace the House of Lords: one-half of our parliament. A “strategic approach” would have been to define in a unified way the role and functions of both houses and propose how they should each be elected. Instead, it seems that the committee will seek to retain the Lords as a subordinate legislative chamber, retaining its present role and powers (I oppose this, see Chapter 2 (pp 61 – 81) The Athenian Option). At the same time they will seek to replace its members over as great a period of time as they can manage while keeping a straight face. In the long run this could be a big change, but for the foreseeable future (i.e. 15 – 20 years) the Lords will remain predominantly selected.

If the Coalition had offered to permit voters to chose an honest electoral process with proportionality, if it had allowed them to publically participate in – or even direct protest against – the redrawing of their constituency boundaries, and if the replacement of the Lords were to be conceived as an unstaged open process removed from the control of MPs and Peers themselves, we could indeed have talked about the Coalition’s “strategic reforms” in these three areas. The legislation is not yet enacted and we may still be able to do so. But for the moment these reforms seem to be designed to change as little as possible.

Strategic Reforms

A Coalition’s intention to use a referendum to decide the voting system, however, secures a genuine reform. This will be the first time the British people will be asked, in a rule-based fashion, to decide a precise question about how we are governed domestically. The 1975 referendum does not count for a number of reasons; the post-1997 referendums did not extend across the UK. This referendum, however, brings us closer to referendums becoming a constitutional principle and doing so under the Conservatives who hitherto have been the main opponent of them. It is therefore a definite additional chip in the cracked edifice of parliamentary sovereignty. The political class may do as much as it can to ensure that people are cynical about the A V referendum and even vote to retain their servility by legitimising the winner-takes-all electoral system that legalises political robbery. Nonetheless, a stirring-up of the public will take place. I have shown how there are four possible outcomes of the referendum. The point to emphasise here is the fact that AV can be decided by a popular mandate. This opens the way for further changes that could turn this outcome into a strategic reform.

A second, genuine reform of the system by the Coalition is the Bill to introduce a fixed term parliament by removing from the Prime Minister the right to call an election at a time of his or her choosing. This will alter the culture of Westminster politics, making it much less dependent on the Premier’s whims and calculations with all the enervating press speculation that accompanies it. Of course, without a constitutional framework it may not last but it is a genuine advance, even if it is the outcome of low calculation and the mutual suspicion of coalition negotiation. The only question mark over it is the choice of five, rather than four, years as the fixed length of time. Undoubtedly, the Coalition leaders calculated that it might take the electorate longer than four years to experience economic recovery and so the Coalition did not dare decide on what is clearly a much more suitable ‘fixed term’.

The most ambitious reform, certainly verbally, that the Coalition has set its sights on is ‘The Big Society’. In the narrow, legislative sense this is not a constitutional programme. But in the words of the Prime Minister it seeks to “liberate” the people and turn government “upside down” to create a new relationship between the public and the state through a radical decentralisation of power. If, as sceptics maintain, it turns out that it involves the privatization and dismantling of public services alongside (limited) investment in various civil society initiatives, but no reforms that would actually increase powers of local government or make it more directly accountable, then it will simply be seen as a rebranding of the Tory Party away from the baleful shadow of Thatcher’s declaration that there is “no such thing as society”. But it is the germ of a concept about how we should govern ourselves. It reaches out to society as a whole. It is aspirational. It calls for participation. It suggests that the community (whatever that may be) should be part of government. At the very least it is highly suggestive of a constitutional strategy.

How one should best describe it and assess its strengths and weaknesses would take another post.

Conclusion

Why is there so much constitutional change? Why are Conservatives in government declaring the need for radicalism and reform? There are at least two reasons. First, the old constitution based on the Sovereignty of Parliament is broken. New Labour and now the Coalition are seeking to keep the show on the road, and enjoy executive power unconstrained by the old informal norms, while they can – without replacing it with popular sovereignty based on a democratic constitution. Under New Labour this led to the MPs expenses scandal. The stated justification of the Coalitions changes is to “restore trust”.

But the loss of trust in parliament as a whole preceded the expenses scandal. The Iraq war struck at the constitutional patriotism of the British tradition. The EU is a democratic provocation for many, especially but not exclusively on the right. So too is the lack of an English parliament or English ‘voice’. Towering over all these issues is the economic question, which has also now become a constitutional one after the banking and financial scandal that was thousands of times more costly than MPs allowances. Indeed the financial crisis posed the fundamental strategic question: in whose name are we governed?

Here, I suspect, the constitutional strategy of the Coalition is that summed up by Labour’s Lord Chancellor, Derry Irvine, when he was irritated by the ‘West Lothian Question’ over the discrepancies of national representation in Westminster if Scotland had its own parliament but not England. The answer to the question, he said, is not to ask it.

Will the Coalition continue the legacy of constitutional interruptus (that is to say a high degree of activity that does not culminate in the conception of a new order) and strategic silence inherited from New Labour? A genuinely constitutional strategy has to emanate from a party overview, expressing a set of interests, yet at the same time bid for these to become a vision for the country as a whole. This can include the desirability of cooperation, pluralism and coalitions. But in a country whose traditional constitution is holed below the waterline there needs to be more. But it is not clear that a coalition can have a constitutional strategy for change – unless this is openly stated and embraced beforehand by all partners.

This then poses the question of whether the Coalition partners are able to share the same overall approach towards the constitution as their leaders claim to be doing. The Lib Dems are debating how “distinctive” they should be (Olly Grender’s recent conference report captures their concern). This is too generic a question. On liberty, as expressed in the Freedom Bill, the interests of the two partner parties coincide in a powerful way that expands their appeal (but their collaboration is constitutionally weak as I have shown). But when it comes to democracy their traditions are in conflict. The Tories want popular consent to a traditional, monarchical form of rule from above. For the Liberal Democrats, constitutional democracy is a defining ambition. The difference between Clegg and Cameron over AV stems from a clash of long-term party principles. For the Prime Minister it has to be a final concession; for Clegg the beginning of a wider reform. To put it another way, the long-term constitutional strategy of the Conservative Party has to be to keep things as much as they were as is possible while bending and updating as usual. The long-term strategy of the Liberal Democrats as a party must be to replace what Clegg denounced in 2009 as a “rotten system”.

Perhaps this difference will offer an opportunity for the Labour Party. If its members can bring themselves to understand what they got wrong after 1997 they might create the basis for a principled alliance with the Lib Dems on democracy and reform for it is unlikely they will be able to govern on their own. But this will surely need a definite constitutional strategy from the outset. It also needs the Lib Dems to survive as a strong independent party after the election. Surely in their hearts and as they prepare for the next election, the Tories will not want this. Crushing the Liberal Democrats as a third force able to prevent an outright Tory majority may well be the real strategy motivating the Conservatives.

This essay was originally written for the London School of Economics Public Policy Group (PPG), which undertakes pure and applied research, policy evaluation and consultancy for government bodies, international organizations and major corporations active in the fields of policy evaluation, public management, budgeting and audit, and e-government, survey or focus group research, public opinion, and the design of election systems.

A shortened version of this essay appeared on the Our Kingdom section of the OpenDemocracy website, and can be found by clicking here.