Identifying the contradiction at the heart of constitutional reformby Vernon Bogdanor / February 20, 2001 / Leave a comment
In no area of policy has the Blair effect been more far-reaching than in that of the constitution. Between 1997 and 2001, the reforms of the Blair government provided for devolution to Scotland, Wales and Northern Ireland; new proportional election systems for the devolved bodies, for the European parliament and for the new London assembly and mayor; the removal of all but 92 of the hereditary peers from the House of Lords; a Human Rights Act; a Freedom of Information Act; reform of the law governing the funding of political parties; and widespread use of the referendum. The Blair government has thus set in train the most radical programme of constitutional reform since 1911 or 1832-indeed its sweep is greater, for the latter two cases were concerned with single, albeit big reforms: reform of the Lords and the franchise.
For anyone acquainted with Labour’s history, this is a remarkable list. Since becoming a national party in 1918, Labour has shown little interest in the constitution-its purpose was to transform society. Unlike many continental socialist parties, Labour never regarded the state as irredeemably hostile to its aspirations. It sought to capture the institutions of the state, not to transform them or break them up. The Liberal party had achieved a political democracy; Labour’s task was to transform it into a social democracy. That changed with Labour’s long period in the political wilderness after 1979-driven by Scotland’s growing political divergence from England.
But, as we shall see, there is a tension between social democracy and constitutional change, in particular the devolution of power. Indeed, it is this tension, combined with a belief that there is little mass interest in the constitution (outside Scotland), which may have prompted the government to downplay its reforms. “The British,” the historian Peter Hennessy told the Nolan Committee on Standards in Public Life, “like to live in a series of half-way houses.” Perhaps the only way to persuade British voters to accept radical change is to tell them that the change is evolutionary in nature, flowing from principles that have been happily accepted in the past.
The government insists, for example, that the basic principles of the constitution and, in particular, the sovereignty of parliament, remain intact. It was in order to preserve the sovereignty of parliament that the government provided for devolution to Scotland, Wales and Northern Ireland rather than a federal solution. For, with devolution, parliament retains the right, in theory, to legislate for Scotland, Wales and Northern Ireland, even in their domestic affairs. So also the Human Rights Act did not give judges the power to strike down Westminster legislation. It remains for parliament to decide whether or not to repeal legislation which the judges declare to be incompatible with the European Convention.
Critics, mainly on the liberal left, complain that the reforms do not go far enough: the House of Lords is only half reformed; electoral reform is ignored for Westminster; the Westminster parliament remains weak, especially in relation to an executive with a large majority; the lack of devolution to England means that the devolution programme is asymmetrical, leaving the West Lothian question unresolved and English regional assemblies ignored. The Blair reforms, however, give us-for the first time since the 17th century-a written constitution by means of the Human Rights Act; and a constitution which is quasi-federal in nature. This is a radical change.
the human rights act will alter the balance between parliament and the judiciary. It will be difficult, although not impossible, for parliament not to respond to a declaration made by the judges that a particular item of legislation is incompatible with the European Convention. Thus it is the judges who will formulate a corpus of constitutional principles in the area of human rights. That is something quite new.
Dicey, that great 19th-century constitutionalist, declared that “the relation of the rights of individuals to the principles of the constitution is not the same in countries like Belgium, where the constitution is the result of a legislative act, as in England, where the constitution itself is based upon legal decisions… in Belgium individual rights are deductions drawn from the principles of the constitution, whilst in England the so-called principles of the constitution are inductions or generalisations based upon particular decisions pronounced by the courts.”
The Human Rights Act transforms this situation. In future, our civil liberties will no longer be in the form of specific inductive generalisations, but will derive instead from “principles of the constitution,” principles of the European Convention. Matters hitherto the responsibility of parliament will in future become, in large part, the responsibility of the courts. The European Convention provided European judges with a weapon. The Human Rights Act hands that weapon over to British judges. No one can be sure what British judges will do with it. In the US, after all, the supreme court has used the weapon of judicial review both to reaffirm and then to do away with slavery, to require members of the Jehovah’s Witness sect to salute the flag, and then to allow them not to do so, to ban the communist party and then to legalise it.
Inevitably, greater attention will come to be focused on who these judges are and how they are appointed. The newspapers have begun to profile the law lords, especially after the Pinochet case, distinguishing between those who are “liberal” and those who are “conservative.” In Britain the removal of direct political influence over the appointment of judges occurred comparatively recently, in the early part of the 20th century. (In the US, decisions made by the supreme court between 1933 and 1953 were much affected by the fact that all appointments between these years were made by Democratic presidents. Between 1969 and 1993, by contrast, all appointments were made by Republican presidents.)
In future, it will be the task of the judges to interpret parliamentary legislation in terms of a higher law, the European Convention. Yet Dicey declared that, in Britain, “There is no law which parliament cannot change. There is no fundamental or so-called constitutional law.” This proposition, although still true in form, is now in substance false. In effect, the Human Rights Act makes the European Convention the fundamental law of the land. It is a law which parliament in practice will not be able to alter, while the judges will be able, if not to pronounce legislation void, to put pressure on parliament to alter any enactment which is contrary to the convention.
with devolution, too, great concern has been shown to preserve the shell of parliamentary sovereignty. Paragraph 42 of the white paper on Scottish devolution declares, in stern Diceyan tones, that “the UK parliament is and will remain sovereign in all matters.” In practice, however, as was the case with Northern Ireland’s parliament (Stormont)-between 1921 and 1972-Westminster by convention will not legislate on devolved matters in Scotland without the consent of the Scottish parliament. So, with regard to Scotland, the sovereignty of parliament now means something different from what it means with regard to England. For England, sovereignty continues to mean supremacy over all matters. For Scotland, it means no more than a vague right of supervision over the Scottish parliament.
Even in the case of Wales, where devolution is limited to executive matters and parliament retains full authority over all legislation for Wales, parliamentary sovereignty has come, in practice, to be severely limited. In the first post-devolution question time for Wales at Westminster, in July 1999, the Speaker on three occasions cautioned ministers not to answer questions on devolved matters, when back-benchers sought to ask questions on abattoirs, the beef industry and on tourism in Wales.
Only with regard to England will MPs continue to enjoy the responsibility which they once enjoyed over the whole of the UK, of scrutinising both primary and secondary legislation. Even in England, however, this responsibility may in practice be limited by the advent of directly elected mayors. In London, Ken Livingstone is likely to say that he alone, and not MPs representing London constituencies, has a mandate to speak for London, because he alone has been directly elected to represent the people of London. Similarly, a directly elected mayor of, say, Newcastle is likely to say that he or she alone, rather than an MP representing a Newcastle constituency, is best qualified to speak for Newcastle.
Westminster is now a parliament for England, a parliament for primary legislation for Wales and a federal parliament for Northern Ireland and Scotland. MPs have different responsibilities for different parts of the UK. Moreover, Scottish and Northern Irish MPs, and perhaps Welsh ones too, not only have a lesser role at Westminster than their English counterparts, they have also lost their constituency responsibilities to members of the devolved bodies.
A constitution, especially a federal constitution, generally requires a court to police it. The Scotland Act provides for such a constitutional court in the form of the judicial committee of the Privy Council. The judicial committee can only pronounce on Scottish legislation, not on Westminster legislation, so that formally the sovereignty of parliament is, once again, preserved. In practice, however, if the judicial committee decides a dispute in Scotland’s favour, it will be hard for Westminster to override its verdict. Thus, both Westminster and the Scottish parliament will in practice depend on the judicial committee for demarcation of their respective spheres of action, a condition characteristic of a federal system; and Westminster will lose yet another of the characteristics of a sovereign parliament, the right to make laws from which there is no appeal.
Dicey once declared that the British constitution was a “historic” constitution, meaning not only that it was very old, but also that it was the product not of deliberate design but of a long process of evolution. There is no inherent reason, of course, why the main elements of such a constitution should not have been brought together in a single codified document. But a crucial provision in such a document before 1997 would have had to be that any article in it could be amended or repealed by an act of parliament. Thus, to formulate the British constitution in writing would have been a fruitless exercise. It could have been formulated in just eight words: “What the Queen in parliament enacts is law.” The Human Rights Act and the Scotland Act, however, have the characteristic of fundamental laws. In practice, they limit the rights of Westminster as a sovereign parliament. It would be difficult to imagine a more radical consequence of the Blair effect.
there is, as noted earlier, a potential conflict between the Blair government’s constitutional reforms, and much of the rest of New Labour’s programme. Social democracy presupposes strong central government, not the dispersal of power. That is as true of New Labour as it was of old. Indeed, as David Marquand has written in Prospect, New Labour’s “workfare state comes straight out of the old Fabian stable of top-down social engineering. It rests on the premise that government at the centre should remake society to fit an a priori grand design.” Pluralism and social democracy are conflicting values, not complementary ones.
Moreover, the Blair government has placed a great deal of emphasis on joined-up or “holistic” government: providing coherent solutions to deep-seated problems such as poverty and public service delivery. But this requires that there be an agreed diagnosis of the causes of these problems and agreed remedies. The dispersal of power to local parliaments and assemblies, as well as the dispersal of power to local mayors, will increase the difficulty of obtaining such agreed solutions. There is no reason why a first minister in Scotland or the mayor of London should agree with central government’s diagnosis of the problem or with its proposed solutions. Suppose that a Scottish parliament were to return a Conservative majority-in 1955, after all, the Conservatives won over 50 per cent of the Scottish vote-and decided that it wished to reintroduce selection in education, or to charge patients for using the NHS. A Labour government would be powerless to prevent it.
Even with a Labour first minister and mayor, there is no reason to expect automatic agreement with central government. Both Scotland and London, after all, are much less New Labour than the Blair government is. The leaders of the authorities representing these areas might well have quite different diagnoses of the problems from that held by Blair and his cabinet, and there is no way in which central government can impose its own diagnosis upon them. Devolution, like the Human Rights Act, hands a powerful political weapon to these alternative centres of power.
In its heyday, the Labour movement was a great centralising force. One of Labour’s fundamental principles, which lay at the very heart of the welfare state created by the Attlee government, was that a citizen’s benefits and burdens should depend on need, not on geography. It would be wrong for a deprived child in Glasgow to receive a higher level of benefit than a deprived child in Liverpool, simply because Scotland enjoyed a parliament of its own, while Merseyside did not. The problems of the deprived areas of the country should be resolved, not by devolution, but by a strong socialist government at Westminster determining a fair distribution between different areas.
It was for this reason that the Labour party, and in particular the left, was so opposed to devolution in the 1970s. Separate assemblies, declared Neil Kinnock in 1976, “could be an obituary notice for this movement.” Labour was concerned less with the argument that devolution would lead to the break-up of Britain, but rather that Westminster would lose the power to correct territorial and social disparities.
Aneurin Bevan held in contempt those who called for Welsh devolution. “Is it not rather cruel,” he asked in 1946, “to give the impression to the 50,000 unemployed men and women in Wales that their plight would be relieved by this constitutional change? It is not socialism. It is escapism.” It was because devolution threatened the pursuit of socialist aims that Bevan resisted the creation of a separate Welsh or Scottish health service. The service was to be a National Health Service, with treatment to depend on need and not on the accident of where one lived.
Devolution, then, is a potential threat to the welfare state which aims at high and uniform provision of services such as health and education. And indeed, already, only two years into the life of the Scottish parliament, a divergence has appeared in one important plank of the welfare state. The Scottish parliament has decided not to follow Westminster in charging tuition fees for university students. Instead, Scottish graduates will pay a total of ?2,000 in installments once they earn ?10,000 per year, the money to go towards providing means-tested grants for students from low-income backgrounds.
Thus a Scottish student attending a Scottish university will enjoy significantly superior financial arrangements than an English, Welsh or Northern Irish student. This poses something of a dilemma for social democrats. If the Blair government’s introduction of student fees is right for England, why should it not also be right for Scotland; or, conversely, if the Scottish parliament declares-as it did-that tuition fees were harming access to higher education, and were therefore socially damaging, why should not the same be true in England, Wales and Northern Ireland?
Much ink has been spilt on the speculative question of whether devolution makes the break-up of the UK more likely, or whether, by seeking to contain centrifugal forces, it is the policy most likely to hold the UK together. But whether or not devolution means the end of the UK, it marks the end of one strand at least of socialism or social democracy: the belief that a benign government at Westminster can secure the distribution of benefits and burdens on the basis not of geography, but of need.
The fundamental case for devolution, after all, is that of diversity, and diversity is more of a liberal value than a socialist one. Much is heard about the influence upon the Blair government of liberalism. Yet the liberalism to which Blair appeals is that of Beveridge, Keynes, and Lloyd George. It is the so-called “New Liberalism” of the early part of the 20th century. That type of liberalism was, to almost the same extent as social democracy, a centralising force, because it was concerned with social reform. True, Lloyd George did accept a “national” Welsh, Scottish and Irish dimension to his National Insurance Act of 1911, but only because, in his own words, you must “defer to sentiment.” He was as sure as Bevan was to be that an insurance scheme and a health service had to ignore national boundaries within the UK if it was to be equitable. Beveridge, too, would have been quite horrified at “national” or regional differences in welfare payments or in taxation.
In fact, the constitutional reform programme of New Labour has affinities less with New Liberalism, than with Gladstonian Old Liberalism, the liberalism which prized diversity as an end in itself, and was highly sceptical of “constructivism,” the idea that the state could engineer social outcomes. Thus in one sense the constitutional reform programme of New Labour is not new at all, but very old, although for the Labour party to adopt a policy which goes against its original raison d’être, is new for the party.
Those who founded and fought for the Labour party when socialism appeared to be the wave of the future were not concerned so much with changing the rules by which power was exercised and governments were formed than with changing society. The general election of 1997 was the first since the Labour party became a national party in 1918 in which state control was not an election issue, because Labour had abandoned it. Indeed, there were precious few differences on social and economic policy between the Conservatives and Labour-fewer than the differences between one wing of the Conservative party, led by John Major, and the party’s right wing, led by John Redwood.
Perhaps we will look back on the end of the 20th century as marking the death of that “constructivism” against which Gladstone railed. And perhaps the left will once again be defined not by its attitude to social and economic issues, but by its approach to the constitution. That, however, will require Labour to actively embrace a constitutional revolution that is by no means complete. n