In pursuit of the unspeakable

A new order is being born. When the UK's constitution is codified, probably about the year 2010, people will date the start of the process to the months between the publication of the Nolan and the Scott reports. This new settlement needs a fresh discourse: free-ranging, sharp, non-sectarian. But how do you speak about the unspeakable?

In the past three months more books have been published on the state of our constitution than at any one season in living memory. A dam is breaking, a blockage is lifting, an historic impediment to democracy in the UK is at last giving way. Yet the strain is clear to anyone who reads these new studies. Their language is arbitrary or jocular-and full of stress. To write about the constitution still feels like dealing with the undead. Heads droop. A grimace of pained disinterest forms a rictus across the cheeks. "Don't call me, I'll call you" seems the natural response. It is not that constitutional reform is unpopular-the polls show otherwise. Or that it is irrelevant-it is essential if the UK is to prosper. Something irrational is going on that makes reading and talking about the British constitution (the world's oldest and-once-arguably its finest) almost repellent. The reason is that in any fair and open debate our constitution could not justify itself to a turtle. This implicates us all-so we share a common desire that the matter not be talked about.

It was not ever thus. Until the first world war our constitution was a matter of constant interest, argument and admiration, often seen as the reason why Great Britain was more powerful than other countries. It was not only Bagehot, Dicey and Burke; Maitland, Disraeli, Mill and even Coleridge turned to the constitution and to what Coleridge regarded as "the great constructive principles of our representative system." Coleridge also quotes from The Royalist Defence of 1648 "that arbitrary power is destructive of the best purposes for which power is conferred." Who has produced a phrase as fine as this in criticism of Michael Howard, the home secretary? Who, in official life, has harked back to the debates which helped to form our constitution, in order to defend the historic liberties which the very same constitution now allows to be eliminated?



Peter Hennessy describes how he investigated the civil service by asking senior practitioners: what are the traditions of the civil service? "One of the most accomplished and most admired (rightly) of our post-war public servants, on whom I quite recently sprung the question, replied quietly, and with an appropriately mandarin smile, 'To run the country.'"

It might seem a trivial phrase. But it illustrates much that is wrong with British government. On the record the same accomplished mandarin will probably tell us that his job is "to serve the minister." Such confidence allows him to deceive himself into believing in his own importance. No one can "run" a country. Countries need leadership, strategy and direction. They are not toy train sets.

These mandarins are our masters. But now there is hope that we can democratise the system-provided that we talk about it like adults. It will not be easy. But hard proposals are on the way. Nolan's are only the start. At its Brighton conference, the Labour party confirmed an ambitious programme of specific reforms and reiterated that it would hold a referendum on the electoral system. In London, the Constitution Unit is considering model legislation of the kind pioneered by the Campaign for Freedom of Information's Right to Know Bill. This summer the Commission for Local Democracy, chaired by Simon Jenkins, published a beautifully clear set of detailed changes designed to recreate local political life in the UK. Equally remarkable, Labour produced a consultative document on regional government for England which endorsed an entirely new principle for the reform of British administration: public consent.

These first seeds of a new settlement are pushing up into a battleground. The executive is at war with the judiciary. The civil service is in open conflict with the government over responsibility and accountability. Even after its Nolan debate the House of Commons (and the House of Lords) is riven by conflicts of interest. The monarchy is bracing itself to withstand divorce and another marriage crisis. The Scott report is awaited with interest-to say the least. Until recently, any one of these clashes would have been regarded as almost inconceivable. Together they are clear evidence of a system failure.

The organising principle of the British constitution has collapsed. This organising principle is "the absolute sovereignty of the Crown in Parliament." It means the fusion of executive and legislative power in a cabinet answerable only to the Commons. It was developed in the late Victorian settlement which established the independent civil service, installed local and municipal government, oversaw the gradual extension of the franchise and accepted the predominance of the Commons over the Lords. A flexible empire state emerged, free from any system of checks and balances. Symbolised by the monarchy and served by an independent but strictly subordinate judiciary, it provided the most liberal of imperialisms, the most open of closed systems. A triumph of social organisation, this unified yet multinational entity was both world ruler and world model for honesty, good government and adaptability.

We are the inheritors of this legacy. But its world is not our world. Parliamentary sovereignty is now an empty formula, "a busted flush" according to The Economics. It no longer exists upwards-the UK parliament has subordinated itself to shared power in the European Union. It no longer exists downwards-quangos and executive agencies have severed the lines of ministerial accountability. It no longer exists even internally-as Sir Gordon Downey, Nolan's new commissioner, testifies.

In his speech to his party conference this October, the prime minister warned of "constitutional chaos." This was not a reference to the constitutional turmoil and disorder now surrounding him. But there may be electoral appeal in John Major's approach. Voters are fearful. They have had enough upheaval. But for Tories to make voters fear for the future of the British constitution, Conservative opinion itself needs to be confident that all is well with the way things are. On the same day that John Major warned against constitutional change The Economist began an unprecedented five-part series about why such change was needed, insisting on practical measures to modernise, democratise and decentralise the system. Piecemeal reform is no longer possible, it said.

The most entertaining illustration of this truth is to be found in Second Chamber (Douglas Slater, 1995) an "informal study" led by the Earl of Carnarvon KCVO KBE and others. This is a clever, often useful, occasionally ridiculous document which seeks to defend the Lords against the advent of a Labour government threatening to abolish hereditary peers. The authors make much of the disinterested quality of the contribution made by the House of Lords. However, the strongest line of self-defence taken by their Lordships is not based on advocacy of the merits of their chamber. Rather they issue a bleak threat to Tony Blair: don't tinker with us or we'll have your guts for our garters.

Carnarvon & Co promise that they will "vote themselves into history with barely a backward glance" provided that the alternative commands wide acceptance. The warning is clear. Any attack on the Lords which attempts to succeed by narrowing its target to hereditary peers will be met with insistence on the larger consequences: "Our unwritten constitution," they correctly point out, is "not a machine made up of discrete components any one of which can readily be replaced by another of more advanced design." So Labour had better stand ready to defend the consequences of abolishing the hereditary element because "the worst upshot would be if reform of the House of Lords were to lead to years of constitutional tinkering and uncertainty."

Here is an ermine gauntlet worthy of a young radical leader. The strength of the challenge is that while Carnarvon's motives may be self-interested, the argument is true. You cannot replace the Lords without touching the rest of the constitution. A wholly appointed upper chamber will serve only to worsen the country's "democratic deficit." The promise to move to an elected second chamber could be disastrous if it is not thought through. If it is to be based on the regions it could prove a chimaera. If it is to be elected directly it will compete with, not complement, the Commons. Either way the law lords will have to find a room of their own which it will be hard not to describe as a supreme court. Furthermore, as the Lords spiritual will be booted out, disestablishment could also result. Hesitation before such obvious consequences will demonstrate unfitness to govern. The House of Lords has declared itself a tar-baby-"touch us if you dare."

Carnarvon has done for the Lords what John Major is doing over Scotland. A tartan parliament might seem like a democratic gesture but, the prime minister warns, it means appeasement of those who desire independence. Granting the apparently reasonable demand for an assembly in Edinburgh will mean the end of the Union.

So, just as the first noises of practical construction can be heard, voices from the status quo retaliate with "the reformers' conundrum"-that piecemeal reform could be frustrated because the whole of the old order will be deployed against it. And yet a "big bang" which deals with that order as a whole is impractical. To spring the trap calls for measured escalation, a commitment to the principles of democratic renewal of the UK with progress based on popular endorsement. This in turn demands an understanding of the relationship between specific change and the constitution as a whole, if first steps towards a new settlement are not to become the stumbling bungles of another Labour disaster.

Yet, how can we thrash out the consequences when the language of constitutional reform is unavailable? A ubiquitous, dense, cultural and intellectual fog blanks out consciousness. It has entered our bodies, it is multiplied in our lungs and billows from our mouths. Constitution? What is it? Don't have one. Boring. Irrelevant. Doesn't mean anything. Who cares? Only for lawyers. Didn't Stalin have one? It's because of Europe. Look at America.

This is talk familiar to those who know the House of Commons and its press gallery. To change the discourse is a priority for reform.In practical terms the restitution of healthy constitutional argument is more important than drafting achievable legislation. For the political will necessary to carry through reform depends upon this cultural change. The reason we can say with confidence that a new constitution is being born is that alongside all the new plans and proposals, the intellectual reservoir which feeds the language of politics is changing rapidly.

This autumn brings three critiques of the constitution from distinguished but very different writers. Taken together, they transform our understanding of the government of the UK. Andrew Marr's Ruling Britannia (Michael Joseph, 1995) is the most ambitious. He gives a description of the inadequacy and failings of Westminster-including a gruesome description of how a callous and arrogant John Major steered pension reform through its committee stage in 1986. Everything that went wrong with it was predicted in committee. Every prediction was ignored-even laughed at. Millions suffered as a result. Marr's description of it is already proving influential. After reading it, no one can suppose that the House of Commons acts as a responsible legislator. As Marr writes: "Real people really suffer as a result of this complacency and mental sloth."

His central section surveys the decline of the nation state, undermined on all sides by the rise of global, local and issue-based networks. The outcome is more ambiguous than Marr allows. We are indeed witnessing the decline of the "Westphalian" nation state, with its absolute domestic sovereignty and rejection of external influence over its "internal affairs." Part of the UK's special problem is that its empire state no longer fits the international order in which it struggles to compete. But while the old-fashioned authority of the state has declined, the new-fashioned power of nation states acting in concert has increased enormously. To be sure, the question at every level of politics is how to share power and co-operate-for which the British winner-takes-all regime is particularly ill adapted. But when co-operation is effective the blind forces of the world market can be harnessed.

It is illuminating to compare Ruling Britannia to Will Hutton's The State We're In, published last year. Hutton gives a coruscating account of the constitutional irresponsibility of the British regime. He draws attention to the way British malgovernance links with the short-termism of the City and of management of the economy. His synthesis of politics and economics spells out the radical and egalitarian case for reform; his record breaking sales may have encouraged publishers to see that there is a market for such books-but not in the high offices of state. What other honourable course of action could there be for an established civil servant, reading Hutton's book, than voluntary defenestration?

The State We're In is written from an outsider's viewpoint of Westminster and Whitehall. Marr, on the other hand, is not an insider, but he wants to persuade our senior civil servants that it will be all right, that their difficulty is in part shared across the world, that reform is practical, that the desire for democracy need not make us glassy-eyed fundamentalists bent upon the destruction of all we know best. Although I find Marr the most compelling of political columnists, his touch occasionally deserts him as, fearing to banish "constitutional chat" to a ghetto, he tries to reach out to everyone.

Peter Hennessy's new volume falls victim to the same imperative to be all things to all readers. Neither conceptually nor stylistically does his chattiness succeed in disguising his incoherence. Unlike Marr, Hennessy believes that we must start reform with the mechanics-that we should reform only "with the grain." (This makes it especially annoying that Marr and Hennessy should review each other so favourably.) But it is hard to pin Hennessy down. In the wealth of information he provides, he suddenly announces that he favours regional government-a reform which cuts right across the grain. Hennessy's discussion, unlike Marr's, is hermetic, devoid of comparative or global analysis, obsessed with the "great ghost" in our constitution.

This idea goes back to Bagehot, Hennessy's first love. Love can be blind. What he says about Bagehot does not make sense. But the issue is important: Bagehot is a prime source of the myth that our civil servants and ministers really know what they are doing even when it seems that they don't. (Their appearance is merely the dignified part, you understand-the efficient activity goes on behind the scenes, "off the record.") Hennessy has now come to the conclusion that Bagehot's theory of an efficient republic behind the dignified folds of monarchy was an "error," but that nonetheless, Bagehot's view of the strictly limited role of the monarchy has become a constitutional truth. In an apparent contradiction of this, Hennessy goes on to declare his conclusion that the authority of the crown remains an important reality. The nature of sovereignty in the UK, the impact of the EU, the measures needed to introduce the openness that Hennessy desires and the modern world demands, are all ignored. Readers of The Hidden Wiring (Gollancz, 1995) will be shaken, all the same, by the picture which emerges from his account, of an elite stretched beyond its means, "making up the constitution as they go along."

The final volume is original and surprising. Simon Jenkins, once a "true believer" in Thatcherism, conducts a sweeping survey of her policies and those of her successor. Jenkins's method is almost the counterpoint of Hennessy's: he looks at the policies of the last 16 years rather than at the personalities. He tells a tale of relentless centralisation: local government, the police, health, education, the universities, housing, the law-everywhere where there was once some degree of independent life has been capped and controlled by Whitehall .

Jenkins's description, in Accountable to None (Hamish Hamilton, 1995), is compelling. He prescribes a massive dose of democracy. His analysis of why things went wrong is less convincing. He blames Treasury control over spending and the imposition of its blighted view that all state expenditure is consumption rather than investment. This interpretation turns Margaret Thatcher into a "victim" rather than a perpetrator of the destruction of democracy. Jenkins marshalls his case with aplomb. But his constitutional conclusions, while radical, are arbitrary. He is not concerned with the question which troubles Marr and Hennessy: how can reform be introduced? Jenkins is simply a voice of protest, especially fearful that Labour will inherit a now virtually unrestricted central state power that Thatcher always regarded as "socialism."

Taking these books together, none of them discusses the role of parties and party structures which are so critical to the working of the British constitution; none consider the "maleness" of the British state; neither do any of these books examine the role of the media in holing Britain's empire state below its water line. But their shared conclusion, arrived at from different perspectives and competing experiences, is that we are witnessing the end of a regime. From the Nolan report to the Scottish Convention, new forms of government are beginning to take shape as our present one is divided by fundamental conflicts it cannot resolve. An overwhelming weight of argument exists to demonstrate that we are already experiencing "constitutional chaos." The strongest line of defence of the old constitution was silence-a silence justified by the refrain "If it ain't broke, don't fix it." No reader of these books can believe that our constitution is in good repair. The inner fortifications of the UK's empire state have been thoroughly breached. Accountable to none by Simon Jenkins

The hidden wiring by Peter Hennessy

Ruling Britannia by Andrew Marr

Standards in public life vol I by Lord Nolan

Second chamber by the Earl of Carnarvon