What's happening to stage two of Labour's constitutional reforms? How is stage one progressing? Lord Falconer and five leading commentators discussby prospect / May 20, 2004 / Leave a comment
Robert Hazell (chair) How do you rate Labour’s constitutional reforms so far, and what remains to be done?
Anthony Barnett The good news is that a magnificently ambitious programme of reform has been put in place, across everything from the Human Rights Act, to the independence of the Bank of England, to varying degrees of devolution to Scotland, Wales, London and so on. This has dismantled the old order, institutionally and culturally. The bad news is that the government has done it in a high-handed manner, failing to put in place the new settlement that John Smith called for when he committed Labour to this programme.
Geoffrey Howe I think that summarises exactly what is wrong. Magnificently ambitious equals grotesquely ambitious, not least, as you say, because of the manner in which it has been undertaken. It is symptomatic of a process that has been running for some time, not only under Labour governments. Indeed, the pace was set by the way the Thatcher government reformed local government finance. As a result of the folly of the poll tax and its subsequent repeal, and of nationalising the business rates, we reduced the proportion of locally raised money from 60 per cent to as little as 20 per cent. Governments feel driven to make changes far too rapidly. It leaves people bewildered. People now don’t even know what the speed limit is. Nigel Lawson recently offered that as a plea in mitigation in a magistrates court when he was charged for speeding. Confidence in government fell sharply under the last Conservative government, Labour’s constitutional reforms do not seem to have helped.
Ferdinand Mount I think one has to look back, as Vernon Bogdanor does in his recent volume on the British constitution, over an extraordinary 20th century in which the first 20 years were teeming with proposals for reform. There was then a long period of suspended animation in which nothing much happened. Indeed, from the point of view of dispersing power the constitution went into reverse, thanks to the collectivist mood of politics and the centralising effects of two world wars. But in the past decade or so we have revived the concern with dispersing power – and I would include privatisation in that. It has been rather helter-skelter and some wrong turns have been taken. The emasculation of local government is the greatest blot. The reforms of the law lords and judicial appointments have also been badly managed. But much of this was necessary and overdue if you want a reasonable dispersal of power in Britain, consonant with our tradition of limited government. So I would give the reforms five out of ten.
Vernon Bogdanor Many of the reforms since 1997 – particularly the Human Rights Act and the devolution legislation – are transforming our system of government from one of tacit understandings to a system of certain fundamental principles. We are transforming an uncodified constitution into a codified one, but in a piecemeal and pragmatic way. The main criticism of this procedure is that we ought to be after a proper constitutional settlement of some sort. But there is no consensus as to what that settlement should be. Nonetheless, I think a lot of Labour’s reforms can be defended on purely practical grounds as meeting particular grievances. For example, the Human Rights Act meets the need to have a proper approach to the European convention, devolution meets grievances in Scotland and Wales, the use of referendums meets the need for wider public consultation in a less deferential age, and so on. And all these reforms have had the effect, broadly, of dispersing power. I also agree that the main item of unfinished business is the failure to find a proper role for local government in our constitution. This administration is once again looking at local government finance. But how much autonomy should local government have? How will redistribution between rich and poor areas work? No one has faced these questions. Otherwise I would give it a more positive rating than Ferdy: between seven and eight out of ten.
Charlie Falconer We have never managed any sort of overall constitutional settlement in this country and there is no reason to suppose that we could do so now. If we wait for a big vision of the constitutional jigsaw before we move forward, we will never move at all. If you look at the constitutional changes that we have made, I would say judge them by whether they are consonant with the values of the country. I think, for example, removing the vast majority of the hereditary peers in the House of Lords plainly goes with the mood of the country. On Scottish devolution there was a firm and settled will among the people of Scotland that they needed an administration with much greater power that was much closer to them. The Human Rights Act reflects people’s sense that they have rights that should be written down. All of those things look to me to be going with the grain. There’s a bit of working out to go in respect of quite a lot of them, but by and large they match people’s view of the relationship between the citizen and the state. I think further Lords reform has got to be judged by whether it goes with the grain: does it improve that relationship between citizen and state? The same question applies to the supreme court and the role of the lord chancellor.
Hazell That brings us neatly to the new supreme court and the role of the lord chancellor. Let me recall some history. When Lord Falconer was appointed lord chancellor last June the prime minister announced a fresh wave of constitutional reforms: creation of a new supreme court in place of the law lords sitting in the House of Lords, abolition of the office of lord chancellor, and an independent judicial appointments commission. Lord Falconer was made secretary of state for constitutional affairs, heading a new department of that name which moved with commendable speed to produce consultation papers on these new reforms. But the judges were clearly taken by surprise by the June announcements and have been in a huff ever since. Some of them saw the judicial appointments commission as threatening the independence of the judiciary by imposing politically correct notions of gender and ethnic balance on judicial appointments. They feared that the abolition of the office of lord chancellor would mean the loss of the role he played in standing up for the rule of law in cabinet. As for the new supreme court, although the senior law lord, Lord Bingham, had been strongly in favour, it emerged that at least half the law lords were against. Even if the government was privately dismayed at this judicial backlash, publicly it was undaunted and in March it introduced its constitutional reform bill into the Lords. The bill would abolish the office of lord chancellor and establish the supreme court and judicial appointments commission. On second reading, Lord Lloyd moved an unprecedented amendment to refer the bill to a select committee for more detailed consultation. The amendment was carried and the select committee has just started its scrutiny of the bill. So, Lord Falconer, where do you hope this reform will be when the select committee reports in the summer?
Falconer We opposed the setting up of the select committee, but it is there now and we are keen for it to provide additional scrutiny for the bill. I hope it can focus the debate away from process and on to the merits of the three proposals – a judicial appointments commission, a supreme court and abolition of the lord chancellor. On the judicial appointments commission, there seems to be broad support, although there are some people who would still prefer the person in the position of the lord chancellor to continue in effect to make the appointments. On the supreme court, there are people who say there shouldn’t be a supreme court but many of those who oppose, do so on the basis that the supreme court is not being given sufficient resources or some other pragmatic objection. On the abolition of the lord chancellor, there is widespread support for at least redefining the role of the lord chancellor; it is no longer possible for a person with significant ministerial responsibilities also to be a judge and to be responsible for disciplining and deploying judges. That strand of opinion says: fine, remove the ministerial function but leave some figure like the lord chancellor to defend the rule of law.
Howe The sadness is that the proposals for the supreme court and the judicial appointments commission could have had widespread support but the method of introduction has endangered it all. My particular regret is that in respect of the lord chancellor’s role, nobody has started from a premise of saying that what we have got works well. There is a broader point here too: is it not ironic that in a political world where the common ground has become more common – redefined largely by the Thatcher government – the parties have been driven to product differentiation in a more aggressive and ill-considered manner?
Bogdanor Contrary to Geoffrey, I think that the politics of the judicial system has not been working well. If we were looking at a new democracy seeking admission to the Council of Europe, and if that democracy told us that the head of the judiciary was also a member of the cabinet, as well as speaker of the upper house, we would look a little askance. And if that country also said that judges of the supreme court are members of the upper house, we would suggest rethinking that. In the modern world, people want arrangements that aren’t just hallowed by time, or working through tacit understandings. They want an arrangement that can be publicly defended. The judiciary is too dominated, as we are here, by white Anglo-Saxon males, and we need a more diverse judiciary to do its job effectively.
Hazell It may be an unacceptable breach of separation of powers that the lord chancellor should also be a judge in the top court of the land and speaker in the second chamber. But isn’t it possible to remove his second and third hats but retain his first hat as a minister of justice? In any case, we must move on to the supreme court. Am I right in thinking that most of us here believe that a new supreme court is necessary?
Mount I don’t think we have begun to think through the likely consequences. The background to this is surely the explosion in judicial review over the past 20 to 30 years. Judicial reticence has gone forever. Introducing a supreme court into this context is much more significant than it would have been in the 1970s. The supreme court will grow in confidence and become an important element in the polity. Governments will then be anxious to ensure that members of the court are at least not wholly out of sympathy with them. And the power given to the secretary of state under the constitutional reform bill to choose from a list of between two and five judges means that he could pack the court far more effectively than any US president. I like the strengthening of the judicial pillar of the constitution, but there is the potential for a lot of fisticuffs.
Falconer The current arrangements have led to a big increase in judicial activism, as Ferdy has said. The judges have rightly taken the view that they must constrain executive activity within the rule of law. Whether they are in the Lords as an appellate committee or in the supreme court I have no doubt that that activism will continue. Currently, the House of Lords appellate committee is not appointed by the lord chancellor – it is appointed by the prime minister. So there is one politician who appoints them all. In future, I, or any secretary of state for constitutional affairs, would have between two and five names to choose from, which would mean less ability for political interference than the current arrangements. But there is still too much room for political interference so we need to get to a point where the relevant minister has to accept or reject the name given to him or her. And if he or she rejects it, then they must accept the next name. That would be a far more constrained arrangement than at the moment. The overall argument for these reforms is that it gives clarity to our constitutional arrangements. But I disagree with Anthony on a codified constitution. A constitution that is superior to parliament, means judges deciding. In the US, abortion, capital punishment, racial segregation and so on have all been decided in the courts. But those are issues that the British want the politicians to decide.
Barnett But a proper constitution can state that.
Bogdanor The Human Rights Act bears some similarities to the American bill of rights. It comprises very general propositions which judges have not hitherto had to interpret. In this situation, the views of the judge become as relevant as his or her expertise. So, perhaps parliament should have a role in selection, with US-style confirmation hearings for judges.
Hazell Let us move on to Lords reform. Again, I will give some history. Labour had a manifesto commitment in 1997 to remove the hereditary peers as the first stage towards introducing a more democratic second chamber. In 1999, the hereditary peers were removed, save for 92 (10 per cent) of them, who were allowed to remain pending the final stages of reform. In 2000, a royal commission, chaired by Lord Wakeham, recommended a second chamber of some 550 members mainly appointed, but with a minority elected to represent the nations and regions of Britain. Labour’s 2001 manifesto said they would implement the broad recommendations of the Wakeham report. In a white paper in November 2001, Lord Falconer’s predecessor, Lord Irvine, proposed that the Lords should be 20 per cent elected. That received a very hostile press and a Commons select committee recommended increasing it to 60 per cent. The cabinet itself could not agree and referred the issue to a joint parliamentary committee to come up with options to put before both houses of parliament. Those options, ranging from 0 per cent to 100 per cent elected, were voted on in February 2003. The Lords voted for an all-appointed House. The Commons could not achieve a majority for any of the options; the one which came closest, losing by just three votes, was 80 per cent elected. Just before the vote the prime minister backed an all-appointed house. Many governments would have given up at this point. But in September, Lord Falconer published a consultation paper proposing not final reform of the Lords, but two further limited reforms: creation of a statutory appointments commission and removal of the final hereditary peers. There were protests that this meant reneging on undertakings that the hereditaries would remain as guarantors of full reform. It was also clear that the government would face difficulties getting its bill through both houses. So, for now, the cabinet has decided not to proceed. Lord Falconer, why have you withdrawn the bill?
Falconer The question for the government was this: would it be sensible, during a period when there could be no more than two years before an election, to spend a lot of parliamentary time on that issue with little prospect of success? You can’t expect to reform the Lords unless you do it at the start of a parliament. So it was a pragmatic, political judgement.
Hazell If Labour wins the next election can we expect further proposals for Lords reform?
Falconer Yes, we can.
Bogdanor How can you produce a representative democratic second chamber in a non-federal state? It is an unanswerable question. It was easier to answer in the 19th century because the Lords represented the past against the present. Some people say: well, we should have a federal second chamber, but even those, like myself, who would like to see a federal Britain realise that we are a long way from that. Others say we should have an upper house elected by proportional representation (PR). But then many people would think that the upper house was more legitimate than the House of Commons. I think the Lords as constituted does fulfil the important function – complementary to that of the Commons – of providing expert analysis of government policy. This is done primarily in its select committees. That work would probably not be done in a house composed of professional politicians. So, I think the Lords should be left alone. And Lords reform for most people is around 357th on their list of priorities.
Hazell Geoffrey, you are a defender of an all-appointed House of Lords, but do you think such a Lords can command public confidence and legitimacy?
Howe I have never excluded the possibility of a democratic element, if anyone could find and implement a method that looked like working. The removal of the hereditaries was a necessary step. It has increased the Lords’ sense of legitimacy. There is no longer an in-built Conservative majority. For example: the vote on the committee to consider the constitutional reform bill was carried – with a majority of just 33 – as a result of most of the crossbench peers (50 to 14) voting with the Tories, and the Liberals supporting the government. So we have got pretty near to where we want to be, although without an acceptable way of introducing an elected element. The Conservative party proposes, although I don’t think it believes in it, a house limited to 300 people, 240 of them elected, but that would be a ludicrous change. The Wakeham commission’s focus on representing the regions and nations pointed in the right direction.
Barnett I don’t agree with Vernon that this is a matter of indifference to the public. But I do agree with Geoffrey that constitutional reform must respect the past. A second chamber has to have an ultimate power to say no, but a fully elected second chamber that becomes a competitor to the first will undermine the Commons rather than hold it to account. It should be a chamber of scrutiny, and I would include a non-elected element. Laws should be in clear English, and we should have some members of the second chamber selected by lot like a jury. Who better to see whether they can understand legislation? Scrutiny should not be left to experts alone.
Mount I think that as much by luck as by judgement the government has created a chamber which enjoys a good deal of public respect. I do not object to adding an elected element to strengthen regional representation, but I do not like the Billy Bragg scheme for electing peers in proportion to the votes cast for the parties at the general election – that will just produce party hacks coming in on the party list.
Bogdanor But how do you get independent members elected? Any election would be organised by the political parties and so you would have professional politicians of the kind you get in the Commons. John Major was right when he said that if the answer is more politicians, you are asking the wrong question.
Barnett No, this country needs more politicians, especially at regional level. How can you believe in a federal Britain and say we don’t need more politicians?
Falconer There used to be a lot of independent members on county councils, but they have rather faded away and been replaced by party politicians.
Bogdanor The decline of the independents came with the 1972 Local Government Act, which increased the size of wards in local authorities. They became too large for independents to canvass. In any election to the Lords, one is going to have large constituencies, and so the independents won’t get a look in. Instead, it will be old Jim who just failed to become mayor and who can’t be sent to the European parliament because he doesn’t like foreigners, so you put him up for the second chamber. People of merit will be unwilling to stand and the turnout will be low because people won’t understand the role of the new second chamber.
Howe The last thing we need in the Lords are clones of the clowns in the Commons. The clowns in the Commons are meant to be the supervisory chamber for legislation, but they don’t look at two thirds of the bills. They are tribalised. I was once a member of the tribe; it wasn’t all that much fun, actually. But the Lords does do the job of scrutinising the legislation, European as well as domestic, and it does it mainly because the party partisanship is weaker and there is a range of ex-cabinet ministers, ex-chiefs of the defence staff, professors, heads of almost every institution, bringing real expertise to bear.
Falconer There’s broad consensus around this table, as I suspect there is around most tables, about what people want the second chamber to do: to revise, to scrutinise, but not to block. We would also want it to be objective, not unpolitical, but capable of a form of scrutiny that would be even-handed in terms of whatever administration was in power. The difficulty with what Geoffrey says is that the Lords is by and large conservative. The Tories and the crossbenchers can usually trump the progressive alliance of Liberals and Labour. That leads to a lack of support for the second chamber if people outside believe that it looks at things in a biased way.
Howe But a lot of the changes made to legislation by the Lords have in fact been on the liberal side, with the criminal justice bill, for example.
Falconer Yes, but it is against change. The best example is trial by jury, which has come to the Lords again and again. I am not commenting here on the issue, but defenders of trial by jury would be regarded as liberal-minded, yet preserving an existing position.
Bogdanor It is difficult to be a full-time member of the Lords if you also have a full-time job and don’t live in the south of England. So it is bound to be unrepresentatively conservative, and to be composed primarily of elderly people – the average age is 68. But one consequence of the government’s reforms so far is that the Lords has become much more assertive; the various rather delicate conventions on which the balance between the houses rested are coming under great strain. So the government is coming to the view – the view of the left in the first 50 years of the last century – that it shouldn’t rationalise the composition of the Lords, but instead reduce its powers.
Hazell Lord Falconer, is the government going to curtail the powers of the Lords or do you believe that the current powers – essentially to delay legislation by up to a year – are broadly right? And what about legitimacy? So long as we have an all-appointed house, or even a largely appointed house, there is still a serious question about public respect.
Falconer Are we talking about curtailing powers? What we need to do is identify the commonly accepted conventions that apply in relation to the Lords. Whether that means containing powers, I don’t know. But confidence in the second chamber does require it not to be an organisation biased in favour of the Conservatives. As far as composition is concerned, you have got to work out what you want it to do before you decide how it should be composed.
Bogdanor Does the government want a stronger or weaker second chamber?
Falconer We want certainty in the way the constitutional arrangements operate. And we want a second chamber that is plainly secondary to the first chamber.
Barnett You say we want certainty. This is the best and worst of New Labour. Unlike the Wilson and Callaghan governments, you are a “can do” lot that want to see reforms work. But how can democratic institutions deliver certainty? The presumption of this government that if it wants x, x must happen, shows a profound disrespect for checks and balances. The desire for certainty can be dictatorial.
Falconer I didn’t say that I wanted to get my way, I said certainty about how the process operates.
Hazell We must move on to broader political reform. Is there a crisis of political engagement? Which of the constitutional reforms so far has most connected with the people? And what further reforms could help to increase trust and a sense of re-engagement?
Bogdanor There is a crisis of political engagement to the extent that turnout has fallen in all elections – local, national, European. Even elected mayors have been a turnout flop. We know that non-voting is most common among the young; among 18-24 year olds, turnout was 39 per cent in the last general election. Older people have a stronger sense of civic duty. But I don’t think it is necessarily a sign of a diseased democracy that turnout should be low. The highest levels of participation in the UK are in Northern Ireland and some of the lowest in London. But no one would say that democracy was healthier in Northern Ireland than it is in London. When you get strong tribal feelings you are going to get a higher turnout. You had strong tribal feelings in Britain – of a political rather than religious kind – from the 1930s to the 1980s when battles between Labour and Conservative were intense. Moreover, we don’t have the kinds of traumatic economic issues that drive people to the polls, such as high unemployment or inflation. That said, we should think about how to increase turnout, and there is a need for civic education among the young. Most of the reforms we have been discussing so far have been reforms that redistribute power among political professionals. We haven’t considered reforms that would redistribute power from the politicians to the people.
Mount I agree. I think we have seen the decline of rage and fear in politics over the past ten years – a period of unbroken economic growth – and the reconstruction of a common ground shared between the main parties. So lower turnout is not surprising and I don’t think there are any wizard wheezes which will revive it, although the use of referendums and local citizens’ initiatives for specific projects might help.
Barnett You asked which constitutional reforms have really moved people; one answer to that is the constitutional reform which hasn’t been put to the people, although perhaps will be now – namely Europe. Over the last 25 years political discourse has become increasingly defined by the media rather than the political parties. And politics has moved, in part, from the national to the international level. Europe is part of that, so is the WTO, and there are a lot of people engaged politically in one-off campaigns of various kinds. Many people who marched, say, with the Countryside Alliance or against the Iraq war won’t vote. Allowing people to vote in supermarkets will not change that.
Hazell Geoffrey, are you an enthusiast for more referendums – on the new EU constitution for example?
Howe I am apprehensive about deciding large national issues via referendum. It is no answer to the growing gap between the increasingly open-minded electorate and the still tribalised politicians. Real people no longer bother to go to the House of Commons. That is part of the rising contempt between people outside and the political class. We need a sea change in the way politicians conduct themselves – we need much more candour. The media don’t help here. We have eliminated the opportunity for thoughtful, candid discussions between politicians and the people.
Bogdanor I agree. There are fewer people in parliament who have done something. They lack authority and voters simply have less respect for them.
Mount We shouldn’t be too sentimental about the old Commons, with its sturdy trade unionists and retired captains of industry. What did they do in the 1950s and 1960s? Fiddled with price and income controls.
Hazell No one has yet mentioned electoral reform. Why did the government in the last parliament fail to honour its 1997 manifesto commitment to hold a referendum on the voting system? Lord Falconer.
Falconer Just to go back one step: I don’t think there is a crisis of political engagement. But one of the consequences of there being less ideology, plus more information available to the public, is that politicians are less in control of the agenda. For example, there is a great debate going on at the moment, quite legitimately, about immigration and asylum, which has not been driven by politicians. That is not necessarily a bad thing but it can mean that there is less space for quite complex views to be put. Politicians need to have time and space to put a particular argument, and that doesn’t always happen. That’s where the danger is, not necessarily in people’s lack of interest in the political process – that comes and goes. What changes have we made that have brought politics closer to people? Scottish devolution has done that. I am not keen on referendums for policy issues. I can see that if you make significant changes in the way that you are governed it might well create a case for a referendum. On electoral reform…
Hazell May I rephrase my question on electoral reform? We know that it is unlikely to increase voter turnout, that’s well established in the academic literature. But might it not help to reduce the dominance of the grey professional politicians that people have been complaining about…