Constitutional reform will be seen as the Blair governments' greatest legacy. But it is a subject in which Tony Blair is famously uninterested, and to which he has devoted only one speech as Labour leader. Significantly, that was the first John Smith memorial lecture, and the subject was chosen in homage to his predecessor, whose cause (and legacy) it was.
In Blair's mind, constitutional reform was the agenda of his first term, when the government legislated for devolution, the Human Rights Act and Lords reform. Having legislated, Blair was able to put the issue behind him and move on to the "real" issues of education, health, crime and so on. But constitutional reform keeps coming back. It continued into the second term, and it continues strongly still. For the tidal wave of reforms in the first term released second and third waves that are still working their way through the system.
The Labour party has long believed in the need for strong and effective central government to deliver greater equality and social justice. Nye Bevan was opposed to devolution for precisely that reason, as was Neil Kinnock. Devolution and decentralisation inevitably mean greater diversity and a risk of greater inequity and inefficiency. The tension between these competing values is as old as the Jacobins and the Girondins. At heart Blair is a Jacobin, a strong, messianic leader whose instinctive response to any political problem is to tighten his grip on the levers of power.
This helps to explain why the first-term reforms were introduced piecemeal with no overarching plan, no sense of constitutional architecture, no attempt to join them up. Nor was there any accompanying change in political culture or behaviour. Blair's ambivalence was evident in the early years of devolution, when he tried to prevent Ken Livingstone becoming mayor of London and Rhodri Morgan first minister in Wales. It continues with his pained surprise at the constraints of the Human Rights Act, the rebelliousness of the new House of Lords, the irritant of freedom of information: third-term Blair cannot conceal his dislike of his own first-term legacy.
This article aims to review that legacy, to show just how many changes it set in train, and how much dynamism is still working its way through the system. The dynamism is particularly evident in devolution, in Wales, Scotland and London. It is at work in parliament, in particular in the new House of Lords, and in the electoral system. It is also being driven by changes flowing from the Human Rights Act and the new supreme court.
Further powers for Wales and scotland
The biggest piece of unfinished business from devolution is Wales. The government has finally accepted that the 1998 model of executive devolution, with the Welsh assembly dependent on Westminster for all its primary legislation, is not working. The assembly is too vulnerable to the competing legislative priorities in Westminster and Whitehall. This is the conclusion of a process which began in 2002 when Rhodri Morgan established an all-party commission chaired by Ivor Richard on the powers and electoral arrangements of the Welsh assembly. The commission reported in March 2004, and recommended that the assembly should have powers of primary legislation, that it should grow from 60 members to 80, and that it should be elected by the single transferable vote (STV).
The main obstacle to implementing the Richard report is the Welsh Labour party, which was deeply split about devolution and remains ambivalent. To circumvent this opposition, the government plans to grant the assembly stronger powers in three crabwise steps. In step one, starting this year, there is to be more framework legislation, to grant the assembly wider powers. Step two will see wider legislative power being granted in defined fields by Order in Council. The final leap—transferring primary legislative powers over all devolved fields—would be made only after a referendum. It is a tortuous approach, but it should get there in the end.
Scotland has shown little support for or solidarity with Wales. It will be interesting to observe the attitudes in Scotland as Wales moves closer to gaining primary legislative powers. Will Scotland support stronger powers for Wales and support a confident and generous settlement based on the model of the Scotland Act? Or is the dynamic of devolution an envious one, a game of leapfrog in which the Scots seek permanently to keep one step ahead, as we have seen happen with the vanguard regions in the historic nations of Spain?
Trying to keep one step ahead may explain the announcement, in July 2005, by Scotland's first minister Jack McConnell of a review of the powers of the Scottish parliament. It is more likely he wants to steal a march on the SNP before the next Scottish elections in 2007. But in truth, the powers that have been mentioned (firearms, drugs, nuclear power, casinos, abortion, broadcasting, immigration) are an ill-assorted list. The truth may also be that it helps to distract from a more important long-term issue in Scotland, which is how devolution is funded. The Scottish Tories would like a commission to examine the case for fiscal autonomy. The Liberal Democrats are looking at a range of extra powers, including tax-raising. Labour still clings to the Barnett formula for fear of something worse. In the long run it cannot be good for Scottish autonomy or fiscal responsibility to be dependent on a block grant from London, especially when public spending is being squeezed. At some point the Scots will want greater fiscal autonomy to match their high degree of legislative autonomy.
Regional government in England
What about the English question? English votes on English laws sounds fair and logical, but would in effect create an English parliament at Westminster (as some of its supporters recognise), and the potential for an elected British government unable to legislate for England. This would cause a constitutional crisis far greater than the West Lothian question itself, which allows Scottish MPs to vote on many English matters but not vice versa. Opinion polls show that an English parliament commands almost no support amongst the English people, and no heavyweight politicians have come out in its support. The Conservatives still support English votes on English laws, but gained no traction for the issue in the 2001 or 2005 elections.
Labour's policy has been regional government in England. But in November 2004 the government's proposals for an elected regional assembly in the northeast were rejected by four to one, on a turnout of 48 per cent. There were many reasons for the result. The "no" campaign had successfully argued that the assembly would mean more politicians, more bureaucracy, more council tax, at a time when politicians of all kinds were unpopular. The assembly was dismissed as a talking shop because of its strategic role and lack of substantive powers. John Prescott appeared to be the sole Labour champion of the policy.
Following this decisive rejection, it might be assumed that elected regional assemblies are dead. They clearly are for the time being, but not necessarily for ever. In 1979 the people of Wales voted by four to one against the Labour government's plans for a Welsh assembly, but in 1997 they narrowly reversed their decision, and the assembly is now firmly established. Could such a volte-face happen with regional government in England? The northeast will continue to look enviously across the border at Scotland. The existing regional tier of government, based around the government office for the region, the regional development agency and the (indirectly elected) regional assembly, continues to grow. At some point the question will be raised again whether this regional tier should come under direct democratic control.
If a future government were ever to resurrect the idea of elected regional assemblies, it would have to demonstrate more convincingly that they had a set of powers and functions that could really make a difference. The place to watch for the emergence of a new model is London. The Greater London Authority (GLA) is also a strategic body, with no service delivery role. After just five years the government has embarked on a review of the GLA's powers, and the political will is there to devolve more power. The GLA will continue to be a strategic body, but it will be proof that strategic bodies can be more than talking shops—especially when it comes to inward investment, big infrastructure and promoting your region as a global brand. At some point, perhaps after the 2012 Olympics, the English regions might start to wonder whether strategic bodies have their uses after all.
Reform of the House of Lords
It was a big achievement to remove the hereditary peers in the House of Lords Act 1999: an anachronism which had persisted for a century, despite several attempts at reform. Of course, removal of 90 per cent of the hereditary peers is only the first stage, and the challenge facing the government is to complete the reform and make the house "more representative and democratic" in the words of Labour's 2001 manifesto. The big divide—which runs across all the parties—is between those who want the House of Lords to be wholly or largely elected, and those who want it to continue to be appointed. The royal commission, chaired by John Wakeham, that reported in January 2000 recommended a modest elected element, ranging from 12 to 35 per cent. The government's November 2001 white paper proposed just 20 per cent elected. But when the House of Commons held a free vote on the issue in February 2003, all seven of an exhaustive range of options—from fully appointed to fully elected—were rejected.
In July 2003 the government concluded, "there is no consensus about introducing any elected element in the House of Lords," but restated a commitment to remove the last 92 hereditaries, and to put the appointments commission (created in 2000, to appoint cross-bench peers) on a statutory basis. But the 2005 manifesto devoted more space to the powers of the Lords than its composition.
The government is clearly hurting from the frequent defeats inflicted on it by the Lords. This is one result of the stage one reform: shorn of the hereditaries, the Lords no longer feels so illegitimate, and has fewer inhibitions about defeating the government. Until 9th November 2005 the Blair government had never lost a vote in the Commons. In the Lords, by contrast, the government is defeated in 25 to 30 per cent of all divisions. In the last session, 2004-05, more than half of the divisions resulted in defeat. Labour is now the largest party in the Lords, but no single party commands an overall majority so to win votes in the Lords the government must generally rely on the support of Liberal Democrats.
Leading Liberal Democrats have, however, begun openly to question the Salisbury convention, the convention going back to the postwar Labour government whereby the House of Lords will not block a government bill that was contained in its manifesto. The Liberal Democrats may try to codify another convention, the principle enunciated by Labour in its 1997 manifesto that "no one political party should seek a majority in the House of Lords." All parties have signed up to this, but there is nothing to entrench it. The prime minister could appoint 200 new Labour peers tomorrow. So long as we have a largely appointed House of Lords, it is important that all parties formally agree not to pack it.
The House of Lords is developing some important new roles. The Wakeham commission recommended that the Lords should be guardians of the constitution, and in 2001 it established a new select committee on the constitution. One of its main interests has been devolution, on which it has published two excellent reports. Unlike the House of Commons, fragmented into three separate select committees for Scotland, Wales and Northern Ireland, the Lords is capable of viewing devolution in the round, and has not been shy of criticising failings.
Expertise and wide professional experience are great strengths of the House of Lords, in contrast to a House of Commons that is increasingly dominated by politicians who have known no other career. These strengths will be at risk if the house becomes largely elected. The Wakeham commission was wise to start at the lower end of the scale, with about one third elected. In terms of daily attendance, that would have led to a 50:50 ratio between elected and appointed, because the elected are more likely to attend regularly.
Electoral reform
Labour's 1997 manifesto boldly stated: "We are committed to a referendum on the voting system for the House of Commons. An independent commission on voting systems will be appointed early to recommend a proportional alternative to the first past the post system." The independent commission was duly appointed, chaired by Roy Jenkins, and in 1998 it recommended a semi-proportional voting system, dubbed AV Plus. Constituency MPs would be elected by the alternative vote (to ensure they were elected by a majority of voters in the constituency), and there would be a relatively small number of top-up seats—around 15 per cent of the whole—to ensure a limited degree of proportionality.
In Labour's 2001 manifesto, the commitment to the referendum was significantly modified. In its place was a commitment to review the experience of the new voting systems, introduced in 1999 for the devolved assemblies and the European parliament. The manifesto then stated, deadpan: "A referendum remains the right way to agree any change for Westminster." There was little support in the cabinet for holding a referendum, with only three cabinet ministers known to be in favour of proportional representation (PR), so the commitment was shelved. The 2005 manifesto contained almost identical wording.
What might eventually trigger a change? Some recent academic work on what leads first past the post (FPTP) systems to switch to PR focuses attention on the number of parties in the system. Conventional wisdom has been that the two dominant parties in a FPTP system cling to it because it works strongly in their interest. But recent studies suggest that once minor parties have gained a foothold, creating a multi-party system, there comes a tipping point when FPTP operates increasingly threateningly even for dominant parties. Canada provides an example of how chaotic FPTP can be for bigger parties. In the 1993 federal election, the Progressive Conservatives who had been part of the government saw their representation reduced to just two seats. In British Columbia in 1996 and Québec in 1998 FPTP produced "wrong winners." The losing party, which had gained more of the popular vote, then committed itself to electoral reform. Five of Canada's ten provinces plus the federal parliament have now established processes to consider electoral reform.
How much of this is transferable to Britain? There was much comment after the 2005 election on the government's share of the vote being the lowest ever, at 35 per cent, with only one in five of the total electorate having voted Labour. Less well understood is how disadvantaged the Conservatives are by the present system: had they equalled Labour's share of the vote in 2005, they would still have been 110 seats behind. Leading Tories privately concede that they may never again win an outright majority. At some point the Conservatives must conclude that electoral reform is in their interest.
Labour is less likely to do so until it loses its majority and we have a hung parliament, with the Liberal Democrats holding the balance of power. If the Liberal Democrats then used their bargaining power to force a referendum, and people voted for PR, the shift would be dramatic. The Liberal Democrats already hold the balance of power in the Lords. If we had PR for the Commons, they would probably hold the balance of power there too. Handing such pivotal power in both houses to the Liberal Democrats might give pause to some PR enthusiasts. If we want the houses to be different, we may want a voting system which continues to deliver single-party majority government in the Commons (as Jenkins sought to do), tempered by a House of Lords where no party has an overall majority.
Human Rights Act
The Human Rights Act (HRA) suddenly seems less well established and irreversible than the other big constitutional changes. In the run-up to the 2005 election, Michael Howard said that the Conservatives would set up a commission to review the operation of the act, and in the aftermath of the July bombings in London, Tony Blair famously declared that the rules of the game had changed. But the government would be on a collision course with the judiciary if it were ever seriously to contemplate repeal. Thanks to the sustained opposition of the Sun and the Daily Mail, many people remain sceptical about the HRA, but they might swing round to support it if the government tried to take it away.
It is hard to argue that the HRA has been a disaster. The judges have not run amok. In the first five years the courts have exercised their power under Section 3 of the HRA to reinterpret statutes so as to make them human rights compliant in just over ten cases; and they have made 17 declarations of incompatibility under Section 4 (of which five were overturned on appeal). In response, the government has taken remedial action in every case, by repealing or amending the offending provision. Entrenching the European convention on human rights (ECHR) in our law, which is what the HRA does, requires public bodies to uphold basic human rights (such as privacy or the right to a fair trial). Its impact has been just as strong on public administration as in the courts.
Over time the impact will grow stronger. The ECHR is a living instrument and the rights, expressed in broad and general terms, are capable of endless interpretation. The judges who interpret them are part of an international brotherhood, not just through the European court of human rights in Strasbourg, but worldwide, who provide each other with new precedents and inspiration. But it is not just the judges. The HRA has powerful institutional defenders in the parliamentary joint committee on human rights and, from autumn 2007, in the new commission for equality and human rights. There will of course continue to be outbursts of indignation—and there are some genuine difficulties over terrorism—but over time the direction of travel will be seen to have been broadly one way, in the strengthening and further development of most of the rights in the ECHR.
Supreme Court
The judicial reform measures that were unveiled in June 2003 initially caused the judiciary great alarm, because of the clumsy manner of their announcement on the back of a cabinet reshuffle. But in the ensuing tussle, the judiciary won a series of concessions, codified in last year's Constitutional Reform Act. The judges do not yet recognise it, but they have emerged much stronger. The office of lord chancellor has been retained, with a statutory duty laid upon the office-holder to uphold the independence of the judiciary. The lord chancellor's role as head of the judiciary passes in April to the lord chief justice, with a concordat dividing functions between them as part of a much clearer separation of powers. The lord chancellor's power to choose new judges will be curtailed by the new judicial appointments commission. And the apex of the legal system is to be crowned with a supreme court.
The new court replaces the appellate committee of the House of Lords. Some believe that apart from the law lords crossing Parliament Square to their new building (Middlesex Guildhall, to be converted by October 2008) nothing else will change. It is true that it will be the same judges with the same jurisdiction hearing the same kind of cases. But the combination of the HRA, devolution and the creation of the new court will trigger a series of further changes. The new court is likely over time to develop a significantly different mix of cases for hearing. Out will go the commercial, tax and private law cases to leave room for cases of constitutional importance: covering the right to die, human rights, privacy, our relationship with Europe, devolution and so on. That has been the experience of the Canadian supreme court over the last 25 years; ours too will gradually transform into more of a constitutional court.
All this will stimulate much greater interest in who the senior judges are and how they came to be appointed. Here the reforms have taken a wrong turn. The discretion previously enjoyed by the lord chancellor has been restricted by the new arrangements for judicial appointments. In future, he will be presented with a single name rather than being given a choice. Technically the judicial appointments commission is an advisory commission, because the lord chancellor can reject the name and ask the commission to reconsider. But in practice it will be an appointing commission. And it will be the judges appointing their own. Although the commission has a lay chair (Baroness Prashar) and lay members it will be heavily influenced by its judicial members. There is a risk of the commission cloning the existing judiciary or worse still, operating Buggins's turn for the top appointments. I would rather the government had retained a wider discretion, with the lord chancellor choosing from a shortlist of three names.
Time for a new narrative
Constitutional reform unleashes powerful forces creating new challenges and tensions. This is unsettling for those, like Blair, who thought you could just legislate and then move on. Two things are needed in this second phase. First, a new narrative that explains the need for continuing reform and offers a better justification than the bland concept of "modernisation." The narrative needs to work at two levels. At the constitutional level, it needs to begin with a strong statement that far too much power was concentrated in the centre. A whole range of new checks and balances have been introduced into the system. There has been huge devolution of power in Scotland and Wales, with more to come. Through the HRA, freedom of information, and now the Constitutional Reform Act, there is greater separation of powers, tighter rule of law, greater clarity and stronger accountability. Parliament is stronger and more effective with a more confident House of Lords, but more work is needed to strengthen the autonomy and effectiveness of the House of Commons. Although we do not have—and probably never will have—a written constitution in a single codified document, a lot more of the constitution has been written down.
The narrative also needs to work at the level of the citizen. Here the government can claim that it is more accountable, open and responsive, and as a result is a more effective government. In the macho world of many ministers (urged on by No 10) strong and impulsive government is seen as effective government, and initiatives like the HRA and freedom of information are tiresome impediments. They are not: they are part of the due process that is essential to good policymaking.
Who might supply this narrative? Charlie Falconer, secretary of state for constitutional affairs, has been doing his best, and in half a dozen speeches has attempted to reinvigorate the constitutional reform programme and supply a mission statement for his new department of constitutional affairs. But he is relatively low down the cabinet pecking order, the speeches have attracted little attention, and it is tough when the prime minister remains uninterested.
Could things change with a change of prime minister? Blair's first cabinet contained just two committed supporters of constitutional reform—Robin Cook and Gordon Brown—and both were prevented from speaking on the subject by their cabinet portfolios. Most of the commentaries on the Blair-Brown axis conclude that on the big policy issues there is little difference between them. Constitutional reform could prove to be an exception.
Gordon Brown's style may be just as controlling as Blair's, but his intellectual starting point is different. He is a strong supporter of devolution in Scotland, he has gone out of his way in the past to support Charter 88, he devolved power to the Bank of England, he has an abiding interest in Britishness, and is better placed than any rival to supply the overarching narrative needed to bind the nation together as devolution comes under strain. We do not yet know his attitude to the other pieces of unfinished business in the constitutional reform programme. He too will be a prime minister with an eye on his place in history, but with less time to make it. Constitutional reforms can be made quickly and at little cost, compared with other policy changes. If Blair continues to spurn the constitution as part of his legacy, look to Brown to take it up and claim it as his own.
