"Among the more touching details in a procession of bigger pictures,” declared Matthew Parris in the Times, two days after the election, “was the sight of hired constitutionalists slipping out of the television studios in the small hours of the morning, humbly aware that their services would no longer be required.” He was not alone in heaving a huge sigh of relief that the complexities of hung parliaments and coalition government were over for the foreseeable future.

He was quite mistaken, however, in believing that constitutional issues have now disappeared from British politics. Indeed, they have a habit of returning by the back door just when orthodox opinion believes that they have been expelled from the front door. So it is in 2015. Indeed, the three main issues on the political agenda are now constitutional ones—the Scottish question, the European question and the human rights question (raised by the Conservatives’ determination to repeal the Human Rights Act). And, over and above these, lies the fundamental question of the appropriate electoral system for the multinational state that Britain has now become. The answers to all these questions can be determined only by a constitutional convention representing the peoples of all the component parts of the United Kingdom.

The issue of electoral reform is likely to rise, like Lazarus, from the dead, following rejection of the alternative vote in the 2011 referendum. In a multinational state, in which divisions of opinion follow the lines of nationality as much as of social class, it becomes even more important than in a unitary state that its component parts are accurately represented in the legislature so that their opinions can be properly assessed.

Devolution—and where to stop

The devolution legislation implemented by Tony Blair’s government in the last years of the 20th century has fundamentally transformed the British state. What had been a unitary state has now become a quasi-federal state. What had been seen as one nation representing different kinds of people was now a union of nations, each with its own identity and institutions. Such a union raises new questions concerning the appropriate distribution of power and resources.

The Conservative government is currently engaged in revising the devolution settlement with Scotland, following the “vow” made by the three party leaders before the referendum and the report of the Smith Commission. It is likely that further powers will be devolved to Scotland. The danger with an uncoordinated process of further devolution is that it would undermine the basic principle on which the welfare state was founded, the principle of territorial equality—that benefits and burdens should depend upon need and not on geography. It was for this reason that, in 1946, Aneurin Bevan, though Welsh, insisted that, instead of creating separate English, Scottish, Welsh and Northern Irish health services, Britain should have a National Health Service. Devolution, of course, has already begun to undermine the principle of territorial equality, though so far only in a limited way. But there are now divergences in welfare provisions in the various parts of the UK. Few object to one part of the country supplementing basic provision. That is the rationale for Scotland providing free university tuition and Wales free prescription charges. There might, however, be objections were one part of the country to decide to abandon what is thought to be a fundamental principle of the welfare state by, for example, charging for a visit to a GP.

We need, therefore, to ask ourselves what functions are so fundamental to the welfare state, so much a part of the social contract, of our fundamental social and economic rights, that they cannot be decentralised. For the Union has a social and economic dimension as well as a constitutional one. If devolution is to be compatible with fairness to all of the citizens of the UK, there must be a statement of the basic social and economic rights which all citizens of the UK, wherever they live, can be expected to enjoy.

Because the various constitutional questions are all so closely interlinked—the Scottish question, the European question, the human rights question, the question of the electoral system—they cannot be resolved piecemeal nor in a hurry. They require a careful and long-term consideration of constitutional change, one not determined by party advantage, but with all-party consent and with the participation of the people. That can only be achieved through a constitutional convention. The outcome of the general election makes a constitutional convention more urgent, not less.

In the multinational and quasi-federal state that Britain has become, Scotland and Northern Ireland have their own party systems quite different from that of England. The Scottish National Party, of course, competes for votes only in Scotland; while the three major Westminster parties now have just one seat each north of the border. In Northern Ireland, none of the Westminster parties have a single seat and the conflict is not between different visions of Britain’s economic and social future, but between competing national identities: British and Irish. The quasi-federal state, therefore, has a multi-party system, and is unlikely to return in the foreseeable future to the standard pattern of exclusively Conservative/Labour competition. Indeed, for the first time ever in British history, the four component parts of the United Kingdom have different majorities—Conservative in England, Labour in Wales, nationalist in Scotland and Unionist in Northern Ireland.

Electoral reform

In the general election, the SNP swept the board in Scotland, winning 56 of the 59 seats. That would lead the incautious observer to conclude that nearly every Scottish voter supported separatism. In fact, the SNP vote was 50 per cent, just 5 per cent higher than its vote in the Scottish parliament election in 2011 and 5 per cent higher than the “Yes” vote in September’s referendum. The 50 per cent of the voters who supported separatism secured 56 seats; the 50 per cent of the voters who supported the Union secured three seats. David Cameron declared after the election that he would respect the wishes of the Scots in their choice of representatives. It is to be hoped that he will also respect the wishes of the 50 per cent of the Scots who voted for unionist parties.

The percentages of the vote secured by the main parties in Scotland were as follows:

SNP 50.0

Labour 24.3

Conservatives 14.9

Liberal Democrats 7.5

Others 4.1

Under a proportional electoral system, the allocation of seats would have been:

SNP 30

Labour 14

Conservatives 9

Liberal Democrats 4

Others 2

In England, also, there is a multi-party system, though that has been masked by the electoral result. Of the 533 English seats, 525 are held by the Conservative or Labour Parties, but nearly one-third of those voting supported other parties. These voters are represented by just eight MPs—six Liberal Democrats, one UK Independence Party MP and one Green MP.

An electoral system should ensure that the majority rules and that all significant minorities are represented. First past the post spectacularly fails both tests. Elections now yield not governments supported by the majority, but governments supported by the largest minority—37 per cent for the Conservatives in 2015, 35 per cent for Labour in 2005—governments to which over three-fifths of voters are opposed.

Minorities, other than the largest minority, are represented in haphazard fashion according to no clear principle. While 4.7 per cent of the UK vote yielded 56 seats for the SNP, 12.5 per cent of the UK vote yielded one seat for Ukip, and 3.8 per cent of the UK vote yielded one seat for the Greens. Two parties secured eight seats, the Liberal Democrats with nearly 8 per cent of the UK vote, and the Democratic Unionist Party, which competes only in Northern Ireland and secured 0.6 per cent of the UK vote.

Under proportional representation, the outcome would have been as follows:

Conservatives 244

Labour 201

UKIP 83

Liberal Democrats 52

SNP 30

Greens 25

Others 15       

A democratic parliament ought to mirror the opinion of the nation. The House of Commons has become a distorting mirror, magnifying some opinions and diminishing others to the point of invisibility. The reason for this is that, under first past the post, the number of seats a party wins depends not only upon how many votes it receives but upon the geographical structure of its vote. A party whose vote is evenly spread, such as Ukip, may gain a number of second places, but it will win hardly any seats. A party whose vote is geographically concentrated, such as the SNP (whose vote is of course concentrated in Scotland) will be over-represented. It is difficult to see the justification of a system under which representation depends upon the accidents of geography.

The distortions of first past the post have now become of more than theoretical interest, since they have come to threaten the very unity of the kingdom, by making Britain appear more divided than it actually is. There are of course considerable differences in voting behaviour between England and Scotland, but these differences are exaggerated by the electoral system. The electoral system therefore exacerbates the West Lothian question, divides England from Scotland, and increases the likelihood of separatism. Proportional representation would alter the dynamics of the conflict between England and Scotland and make it more manageable.

Devolution vs Cameron’s new Bill of Rights

Conflict between England and the other component parts of the UK could also be exacerbated by two further constitutional questions prominent on the agenda of the Conservative government—the European question and the human rights question.

The European question arises as a result of Cameron’s commitment to a referendum on the European Union made in his Bloomberg speech of January 2013, in which he called for a new “general settlement” in Europe which he hoped he could “enthusiastically recommend” to the British people.

The human rights question arises as a result of the Conservative commitment, in a policy document produced in October 2014, entitled “Protecting Rights in the UK,” to repeal the 1998 Human Rights Act and replace it with a British Bill of Rights. This would replicate some of the rights in the European Convention of Human Rights but curtail others. In addition, judgements of the European Court of Human Rights would in future be deemed advisory only and of no binding status in UK law. To permit implementation of these proposals, the British government would seek to re-negotiate its membership of the Council of Europe. But, if these negotiations were unsuccessful, the Conservatives intend to propose that Britain withdraw from the European Convention.

Both the European question and the human rights question impinge on the union with Scotland and the union with Northern Ireland. Suppose that, in the referendum on the EU, a majority in the UK and a majority in England vote to leave, but the Scots vote to remain. Nicola Sturgeon, the SNP leader, has indicated that such an outcome would not be accepted as legitimate in Scotland and that Scotland cannot be forced out of the EU without its consent. She has argued that a mandate for the UK to leave the EU can be achieved only through the consent of each of its constituent parts—England, Scotland, Wales and Northern Ireland.

Consent in Northern Ireland is a more complex matter than in Scotland. The Belfast Agreement of 1998 provides that major decisions in the province require the consent of both communities, the unionist and the nationalist. So a vote to leave the EU against the wishes of the Scots or the Northern Irish could provoke a constitutional crisis.

The human rights question also impinges on the union with Scotland, and upon the Belfast Agreement. This provided for Northern Ireland to enjoy, not fewer rights than those in the Human Rights Act, which enacts the European Convention, but, on the contrary, “rights supplementary to those in the European Convention on Human Rights to reflect the particular circumstances of Northern Ireland... These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem and—taken together with the European Convention of Human Rights—to constitute a Bill of Rights for Northern Ireland.” The agreement provided for the establishment of a Northern Ireland Human Rights Commission so that the identity and ethos of both communities in the province could be respected, and it also proposed a general right to non-discrimination. It envisaged that the Human Rights Commission in the Republic would join with that of Northern Ireland to produce a charter endorsing agreed measures to protect the fundamental rights of all those living in the island of Ireland, something that has not yet been achieved. The idea of a British Bill of Rights, therefore, could unpick the delicate balance achieved in the Belfast Agreement which served to reconcile the interests of the unionists of Northern Ireland, who wished to remain British citizens, with those of the nationalists, who did not, and who may not see themselves as British at all.

From a strictly legal point of view, the protection of rights is a “reserved” and not a devolved matter (that is, a matter for Westminster). But, by convention, the devolved bodies are consulted before there is any alteration in their powers, and it would be unthinkable to alter the rights of those in Scotland and Northern Ireland without securing the consent of their elected bodies. If they were not involved in the negotiations, they might well not accept a British Bill of Rights as legitimate. In 1982 Pierre Trudeau “patriated” the Canadian constitution, removing from the British parliament the authority to amend it. He did so against the wishes of the government of Quebec, which had its own provincial bill of rights defending the French language and education rights, and did not wish to accept the patriated constitution, since it believed that this would deprive it of autonomy in relation to French language and education matters. Because of Trudeau’s failure to respect Quebec’s wishes, disagreement between the federal government and the government of Quebec has remained a running sore, poisoning relations for many years.

It would not be easy to secure the consent of the devolved bodies in Scotland or in Northern Ireland to the repeal of the Human Rights Act and enactment of a British Bill of Rights, since neither the SNP nor Sinn Féin, would want to agree to something that they saw as “British.” They might well prefer, instead of a British Bill of Rights, a structure of rights for Scotland and Northern Ireland that were self-generated, and relevant to their own specific experience. Enacting a British Bill of Rights, therefore, could prove a highly divisive issue both in Scotland and in Northern Ireland.

If the British government preferred not to involve itself in difficult disputes with the devolved bodies, the alternative would be to propose a bill of rights applying only to England. There would then be an English rather than a British Bill of Rights, and the devolved bodies could be left to adopt whatever arrangements they chose in relation to the European Convention. But it would hardly be satisfactory if there were to be different standards of human rights in different parts of the UK—with the exception perhaps of the special situation of Northern Ireland. If Scotland and perhaps Wales also had different standards of human rights, that could weaken the sense of Britishness which the idea of a British Bill of Rights is intended to confirm, and it might increase support for separatism. What is clear is that there is a fundamental tension between the principle of devolution and that of the entrenchment of rights UK-wide.

The issues of Europe and of human rights, therefore, are very much interconnected with the future of the UK and the Scottish question; and with the delicate balance embodied in the Belfast Agreement for Northern Ireland. They show that Britain is no longer a unitary state, but that it has become, in practice if not in theory, a quasi-federal state of nationalities in which the consent of each component part is needed for major constitutional change.

The general election answered the question of who is to govern the UK for the next five years. But it left open the question of whether there will still be a UK to be governed. That question is, as we have seen, interlinked with other constitutional questions—the European question, the human rights question, and, above all, the question of the appropriate electoral system for a multinational state. These can be resolved only by a constitutional convention. The sooner it is held the better.