Tony Blair initiated an enormous amount of constitutional change—ranging from the 1998 Human Rights Act to the devolution of substantial powers to Scotland and Wales—but, famously, he was not much interested in constitutional matters. He inherited many of New Labour's specific pledges from his predecessors, and he delegated most of the detailed work to his first lord chancellor, Derry Irvine. But Britain's new prime minister, Gordon Brown, is very interested in constitutional matters, and clearly intends to make constitutional change a defining theme of his administration. Indeed, his first statement to the House of Commons, in early July, dealt entirely with what the editors of Hansard chose to call "constitutional reform."
But what does Brown understand by constitutional reform? How does he intend to bring it about? Are the specific changes he proposes desirable in themselves? Are they likely to achieve the prime minister's own declared objectives? So unused are the British to debating large constitutional issues that these questions have so far gone largely unanswered, indeed largely unasked.
In his statement to the Commons, Gordon Brown announced a very wide range of decisions already taken by the government and proposals opened up for discussion. Depending on how one does the count, the prime minister's list contained between two and three dozen such decisions and proposals. Most were further elaborated in "The Governance of Britain," a green paper published jointly on the same day by Brown and his new secretary of state for justice, Jack Straw. The sheer volume of the ideas floated led one opposition MP to refer to Brown's "encyclopedia of proposals."
The first thing to be said about Brown's long list is that although all the items on it deal in some way with the operations of government, only a minority of them are properly "constitutional." Only a minority deal with the most important rules that regulate the relations among a country's governing institutions and between those institutions and the country's citizens. Whether Britain's prime minister makes a statement each summer outlining the measures to be announced formally in the Queen's speech that autumn may or may not be desirable—it probably is—but it is hardly of constitutional significance.
That being so, and given the prime minister's stated desire to involve Britain's citizens in every possible way in developing the constitution, it is striking that the methods by which they are to be involved have been left, for the time being, largely unclear. Green papers are supposed to be consultation documents, but "The Governance of Britain" gives the reader no indication of how the concerned citizen can make his or her views known. It contains neither a postal nor an email address to which comments might be forwarded, nor does it set out a deadline for the submission of views. For the most part, it merely promises the undertaking of further consultation exercises and reviews. It seems that no constitutional convention is to be summoned. Instead, the green paper refers vaguely to "citizens' juries," "local, regional and national level events" and "tapping into the wealth of knowledge amongst expert and representative groups." The government is long on suggestions and proposals, but short on the procedures by which they might or might not be acted upon. The new constitutional settlement is evidently meant simply to "emerge," rather in the fashion of an old-time leader of the Tory party.
At some points this trust-the-people approach evinces naivety bordering on the comic. In his statement, Brown announced that he had asked Jack Straw "to lead a dialogue within parliament and with people across the United Kingdom by holding a series of hearings, starting in the autumn, in all regions and nations of this country." Brown insisted in parliament that "a constitutional convention of the great and the good is not as good as hearings that will be held in all parts of the country." The truth is that hearings of this kind invariably attract the elderly, the male, the white, the middle-class and people with both bees in their bonnets and time on their hands. Well-considered and durable constitutions do actually emerge from gatherings of the great and the good—and from nowhere else. George Washington, Benjamin Franklin, James Madison and Alexander Hamilton—the men who met in Philadelphia in the summer of 1787—were certainly great and arguably good. It is true that they won the consent of the people in a series of state-by-state conventions, but the people were asked to ratify or refuse to ratify a document that had already been carefully thought through, the outcome of months of behind-the-scenes deliberation.
As might be expected, the government's specific proposals are a mixed bag. Some are merely overdue. Others are genuinely bold. Some are couched in such vague language that it is hard to know what to make of them.
The class of the overdue includes the restrictions that the government has already decided to place on some of its powers to use the so-called "royal prerogative" to take major decisions without being obliged to consult parliament. Not before time, a Scottish prime minister who sits for a Scottish constituency has decided that British prime ministers should no longer play any part in the appointment of bishops in the Church of England. More adventurously, the new government is abrogating its power to declare war and ratify international treaties on its own. In practice, successive governments had already arrived at this destination; Blair would have resigned if the House of Commons had not voted to support the Iraq invasion. But it is good, if only on grounds of clarity, to have informal understandings morphed into formal procedures.
That said, the purposes underlying some of the proposed changes remain unclear. For example, the new government wishes parliament, rather than the prime minister, to decide when parliament should be dissolved and a new general election held. But the point of this exercise is obscure. The opposition parties will almost invariably vote in favour of a dissolution and a new election: they would otherwise appear undemocratic and craven. It follows that the prime minister would fail to get his way only if a large majority of his own party refused to support him in calling for a dissolution. They might do that if large numbers of them feared losing their seats, but if large numbers of them feared losing their seats the prime minister would almost certainly not have called for a dissolution in the first place.
If the argument is that prime ministers can no longer use the threat of a dissolution to bludgeon their backbench supporters into voting for government proposals they are adamantly opposed to, then it is a weak one. The threat of a dissolution under those circumstances has long since ceased to be credible—and is now seldom made.
Some of the proposals so boldly announced by the prime minister in parliament are revealed by the green paper to be vague and wishy-washy to the point of deliquescence. The prime minister announced that the executive branch of government would surrender or limit its "power in the appointment of judges." But the green paper points out, rightly, that the role of the lord chancellor in the appointment of judges is already residual and that the grounds on which he can reject an appointment recommended by the judicial appointments commission, or ask the commission to reconsider it, are already "strictly limited by statute," with the minister's reasons for acting as he did always to be set out in writing. The green paper's language could hardly be more tentative: "The government is willing to look at the future of its role in judicial appointments: to consider going further than the present arrangement, including conceivably a role for parliament itself, after consultation with the judiciary, parliament and the public, if it is felt that there is a need."
This tentativeness is the hallmark of much of the government's constitutional programme. Lords reform? Wait until after the next election. Electoral reform? Wait for the government to publish its long-promised "review of the experience of the various voting systems introduced since 1998." Voting at weekends? "The secretary of state will announce a consultation on whether there is a case for voting at weekends." A new national security committee (an American-sounding national security "council" in the prime minister's own statement)? Sounds good, and the green paper does give an indication of who will sit on it, but it appears to the outsider to be a useful bit of institutional tinkering rather than a real constitutional amendment. A "new concordat between local and central government"? Again, sounds good, but what does it mean? Paragraph 179 of the green paper provides almost nil guidance.
The government is probably wise to be tentative but probably unwise to appear to promise so much while delivering, at least in the short term, so little. Taken together, the proposals announced so far resemble the prologue to a play rather than the play itself. Brown's statement provoked little opposition partly because the specific proposals that it does contain—for instance, parliamentary involvement in the appointment of an independent person to chair the new national statistics board—are mostly unobjectionable. David Cameron found it hard to be negative.
But attractive though it seems on the surface and unobjectionable though many of its specifics are, the whole exercise raises serious problems. The main problem, as so often on these occasions, relates to dogs that neglect to bark and elephants whose presence in the room is studiously ignored. This new programme of constitutional reform ignores some of Britain's most pressing constitutional issues. Variegated the government's programme certainly is. Comprehensive it certainly is not.
As several speakers in the Commons pointed out, although the prime minister's opening statement had a good deal to say about the role of parliament, it neatly sidestepped the central issue of the Commons's committee system. If parliament is to become a genuine legislative assembly—as distinct from, most of the time, a mere debating society—then its committee system clearly needs radical overhaul, with the existing standing and select committees merging and their successor bodies given enhanced powers of pre-legislative scrutiny. In other words, parliament's committees need to be able to force a government that is frantically digging a hole for itself—and for the country—to stop digging. The ill-fated poll tax of the 1980s resulted from, among other things, a defect in the constitution: its failure to provide MPs with an effective means of saving governments from themselves.
More generally, the role that the House of Commons is to play in the new era remains radically unclear and raises questions that the green paper leaves unanswered. For example, parliament, through its select committees, is to hold hearings before the government's nominees for certain key public positions are confirmed in their posts, but the hearings would be "non-binding" and the green paper fails to address the question of whether the holding of such hearings might not deter qualified people from allowing their names to go forward. Americans complain that the need for Senate confirmation—and the hostile questioning that that procedure often entails—puts many otherwise public-spirited men and women off any idea of public service. The green paper also has nothing to say about the desirability of augmenting parliament's role in the scrutiny of EU legislation, a field in which the British parliament's role remains feeble compared with that of several of its continental counterparts. (Indeed, the EU gets only a couple of passing mentions in the whole document.)
Another issue that would, in an ideal world, be addressed in any debate about the British constitution is the issue of nationwide referendums. So far the British experience is that referendums are held, or not held, at governments' convenience. Tony Blair felt it expedient, before the 2004 European elections, to promise a referendum on the then proposed European constitution. Gordon Brown now feels it expedient, with no important elections impending, to say that there is no need to hold a referendum, on the grounds (surely specious?) that the new version of the EU constitution is not really a "constitution" at all. A truly comprehensive programme of constitutional reform would include provisions for identifying questions on which referendums should be held and should not be held—and for making sure that if a question arose on which a referendum should be held, one actually was held.
But the two bigger issues not addressed in either the prime minister's statement or the green paper concern devolution. Brown did repeat that the government would not countenance any notion of "English votes for English laws," with Westminster MPs from Scotland, Wales and Northern Ireland precluded from voting on matters affecting only England; and he was right to do so, not because the idea of English votes for English laws is wrong in principle—it has a lot going for it—but because any such provision would make a nonsense of the idea—firmly established in Britain since the 18th century—of governments' authority being based on their possession of a parliamentary majority. As the prime minister himself said, English votes for English laws would mean that "the executive would owe their authority to two different groups of people: on one occasion, to all members of the house and on another occasion, simply to some members of the house." He cheerfully quoted David Davis, the Conservative shadow home secretary, speaking in 1999, to the effect that English votes for English laws would result in constitutional chaos. He was right.
However, matters cannot be left there. As long as the Conservative party has a chance of forming a government, the issue of Scottish and Welsh votes at Westminster will remain alive. If the new prime minister does not address the issue, sooner or later someone else will. The obvious way out—however uncomfortable for the Labour party—is to follow the precedent established during the days of the semi-autonomous Northern Ireland parliament at Stormont (1922-72) and to reduce drastically Scottish and Welsh representation at Westminster, well below the number of MPs they are entitled to on the basis of population. Such an outcome would be tolerable and sustainable; the status quo, with hordes of non-English MPs determining the outcome of purely English legislation, is not. The Conservatives will see to that.
The same almost certainly goes for another key element in the 1998 devolution provisions: the handing over to the Scottish parliament and the Welsh assembly of a single block grant, on the basis of the so-called "Barnett formula" (long since disowned by Joel Barnett). Apart from the unsatisfactory properties of the Barnett formula itself—including the fact that it is not based directly on any assessment of the two nations' spending needs—the arrangement leads to a situation in which the parliaments of two nations can claim all the political credit for what they spend while not having to suffer the political pain of having to raise some or all of their own taxes. As things now stand, if the Scots or Welsh believe they have too little money to spend, they have no alternative but—and every incentive—to blame Westminster. The potential in Scotland and Wales for moaning is infinite. All the Britain-wide political parties—and all who want to preserve the union—therefore have an interest, before this issue turns septic, in trying to agree alternatives to the block grant and Barnett.
The prime minister has focused on the desirability of achieving "a settled consensus" on constitutional matters but, sadly, no such consensus is remotely on offer. Debates on the constitution, including on many of the issues just mentioned, are bound to be divisive. That said, a serious politician like Brown is unlikely to embark on a major project such as this unless he believes there is a great deal at stake, and Brown has indicated clearly what he believes to be at stake. One is the health of British democracy; Brown is concerned about what he sees as the extent of citizen disengagement from politics. Another, related to the first, is the health of British society; he worries about social disintegration and the decline of a sense of community. A third is the unity of Britain. Brown believes Britain should be one nation, a nation at ease with itself and whose citizens are at ease with each other.
His objectives are noble, but it is less clear that Brown's constitutional and quasi-constitutional proposals, even if every one of them were adopted, would take Britain very far towards achieving those objectives. Certainly Brown himself has not yet made out that case. At the very least, it should give the prime minister, and the whole country, pause for thought that Britain now has more parliaments, more elections, more elected office-holders and more elaborate processes of public consultation than ever before—and that the British people seem less happy than ever before about the quality of their government and their civic life. Perhaps—who knows?—some of the prime minister's proposed cures might actually contribute to the progress of the disease.
