on Constitutional Reform. The video is on the previous post -
Codgers Debate 19th April 2010
‘So what is the problem?’
Good evening ladies and gentlemen. I’ve called this talk ‘So what is the problem?’ It will be a very familiar question if you have teenage children, but in this case it is not meant rhetorically. Most people do think there is quite a serious problem with the way we are governed, and that view is not confined to so-called ‘ordinary voters’. Much of what used to be called ‘the establishment’ – judges, senior civil servants, distinguished academics and so on – now think the same, and since the expenses scandal even politicians seem to agree that something is badly wrong.
However it seems to me that there is much less agreement about whether the problem lies with the constitution itself – that is the architecture of laws and conventions which define the structure of government – or rather with the conduct of government, that is the way that politicians actually behave. I thought one of the most interesting things about the expenses scandal was the way the leadership of all the political parties responded to what was really a fairly straightforward failure of conduct with all manner of proposals for structural change, as if fixed-term parliaments or an elected House of Lords were an obvious remedy for MP’s financial misbehaviour.
There is also rather little agreement amongst those who do advocate structural constitutional reform about what specific further changes should be made. I say further, because if you take Scottish devolution, the effect of various EU treaties, the Human Rights Act, the exclusion of the hereditary peers and the establishment of the Supreme Court, we have arguably seen more constitutional change in the last twelve years than in any previous period since the Civil War.
Despite this lack of consensus about the detail of reform, I think one can see three broad threads running through the arguments. The first is the idea that we are suffering from a ‘democratic deficit’, in other words that your vote doesn’t really count and that MPs are not properly accountable to the people who elected them. The second is the concern that government has become too dominant and too pervasive, and that ordinary citizens now have too little control over their own lives. The third is the view that our so-called unwritten constitution is no longer fit for purpose and that we need a codified, embedded constitution of the type found in virtually every other modern democracy.
Now there is clearly some truth in these propositions – they would not be so widely supported otherwise – but I want to suggest tonight that all three are also double-edged, and that the reality of our current predicament is actually rather more complex.
Let us look first at the idea that we need more democracy. Well, if ‘more democracy’ means voting for more things then we are actually moving in the right direction. In the 1970’s Londoners had only two opportunities to vote – for their Westminster MP and their local borough councillors. Today they can in addition vote in elections for the European Parliament, the London mayor and the London assembly: five separate votes in total.
Confusingly, all five of these elections are conducted using different voting systems. Only elections for Westminster still use the traditional ‘first past the post’ system, and this has of course itself been a target for reformers for at least the last forty years. It is quite true that first-past the post does produce perverse and apparently unfair results. For example in the 2005 general election Labour won 35% of the popular vote but ended up with 55% of the seats in parliament. It also effectively disenfranchises voters in the many hundreds of safe seats where the result is a foregone conclusion.
There is not time tonight to talk about all the various alternative voting systems, but they have one thing in common which is that they are more likely to produce coalition governments. Now you may think that is quite a good way of keeping politicians in check – and interestingly there was a poll over the weekend which showed over 50% positively in favour of a hung parliament. However it is also an unavoidable feature of coalition government that policy is negotiated in back-room deals between the parties after the election result is known: that is what happens in most European countries. The problem with that is that it is much harder to vote for decisive change, which arguably has a different but equally undesirable disenfranchising effect.
Another point that is often made is that MPs live in a gated Westminster community and are out of touch with ordinary voters. Now there is of course some truth in that, but it’s also true that a typical MP now spends up to 40% of his time dealing with complaints from individual constituents - the great majority of them about housing and benefit issues - something which would have been unimaginable a generation ago. And while MPs have become ombudsmen, who is scrutinising and debating the torrent of new legislation which governments now introduce?
The answer is the House of Lords, which now perversely plays a rather effective revising role, despite the fact that its members are of course unelected. Here I would suggest is a situation in which ‘more democracy’ would be a positively bad thing, because an elected House of Lords would quite likely be as useless as the Commons as an effective legislative body and as much under the control of the Party whips.
Let us now look at the widespread view that that government has become too powerful, and that this process has accelerated under New Labour. Well again I would suggest the picture is actually rather less clear cut. On the one hand, we have certainly seen a major extension of petty regulation into many areas of everyday life, some of it home grown but much of it emanating from Brussels. It is also true that, since 9/11, we have seen a very significant increase in the powers of the state in relation to terrorism. It is a matter of opinion whether this raft of new security legislation was necessary or proportionate to the actual threat, but it has unarguably resulted in a significant reduction in individual liberties.
However the Blair government also reduced the scope of government authority in quite significant ways, by establishing the Scottish Parliament and the Welsh Assembly, with the Freedom of Information Act (2000) and with the incorporation of the European Convention on Human Rights into British Law. None of this looks like the work of an authoritarian administration. And meanwhile power over large areas of British life continues to trickle away from Westminster across the channel to Brussels, regardless of the policy of the any British government.
So while ministers and officials often have an unattractively bossy manner, I am not convinced that government has become systematically more authoritarian. Indeed a better diagnosis may be that government has become significantly less effective – a point to which I will return later.
Thirdly, let us look at the argument for a unified, written constitution. We are one of only three parliamentary democracies without one – New Zealand and Israel are the other two – so to that extent the current position is certainly anomalous. It is not the case that none of the British constitution is written down – there are a number of statutes dating back to the Bill of Rights which are generally agreed to have a constitutional authority- but the constitution also contains significant customary elements. Customs and conventions are by their nature evolutionary, and open to re-interpretation in different generations. There are some good arguments in favour of this flexibility, but the other side of the coin is that we lack is a clear body of fundamental law which binds future governments and which cannot easily be changed. Now if you are concerned about the theoretically unlimited authority currently enjoyed by a government with a parliamentary majority, that sounds like a very undesirable state of affairs.
However the introduction of a proper written constitution would have one unavoidable consequence: someone will have to decide whether new legislation or government actions are ‘unconstitutional’, and that someone is the judges. So, as happens in the United States, a new government with a strong popular mandate may find its legislation frustrated by a handful of unelected judges. And in such a system, the longevity of individual judges can become the principal determinant of significant areas of policy: the history of US Supreme Court rulings on abortion since Roe v Wade (1973) is a textbook example.
All the same, I do think it is possible that a broad consensus in favour of a written constitution may emerge over the next few years. However it is much less likely that there will be agreement about what such a constitution should contain, and even if some future constitutional convention did thrash out an agreed draft, it’s quite possible that it would be rejected by a subsequent referendum. One can quite imagine the whole process being diverted by irreconcilable differences over a few emotionally charged issues like the status of the monarchy and the disestablishment of the Church of England.
So I am on the fence about this: I quite agree that there are aspects of the existing arrangements which are far from perfect, but I’m not yet convinced that a written constitution, even if it were achievable, is the answer.
So let me come to my final point. I drew a distinction at the beginning of this talk between structural - that is constitutional – deficiencies and deficiencies in the conduct of government. As I’ve tried to show, I do not believe that the advocates of further major constitutional change have yet made a convincing case. I do however believe that there is a strong and urgent case for a reform of government behaviour.
As I see it, New Labour came to power to 1997 with one overwhelming priority, which was that they should never lose another election, and this objective has consistently taken precedence over any other issue of domestic policy. As a consequence, government in the proper sense seems to have been replaced by a continuous marketing exercise – in effect a perpetual election campaign - whose aim is to dominate and control the media agenda. That is why we have had this constant stream of policy initiatives, and re-announcements of existing initiatives, and an unprecedented tidal wave of new legislation. One new criminal offence has been created for every day that Labour has been in power. Much of this legislation is sloppily drafted, it is whipped through the Commons with the minimum of debate on a government-imposed timetable and it is quite frequently superseded by a new piece of legislation on the same subject before it has even been implemented.
And I have no reason to think that a Conservative government, given a large enough majority, would behave any differently. The problem - and it may be the single biggest problem of contemporary democracy - is that all politicians are terrified of losing power, because the lesson of the last 30 years is that once you’ve lost power you don’t get it back for a generation. And that is a particularly horrifying prospect for career politicians who are unqualified for any other type of gainful employment.
The result is that we end up with highly centralised Party machines in which the leader takes all significant decisions, assisted only by a very small circle of advisors who are not policy experts but masters of marketing and media manipulation. And - since any evidence of disunity, or any admission of error, is thought to be electoral suicide - any debate, any questioning of the current policy line, in Cabinet or in the Commons or from civil servants or independent experts is ruthlessly suppressed. The result is that we have ended up with a style of government which is simultaneously mendacious and ineffectual. And that, ladies and gentlemen, is, I suggest, the problem. Thank you.
The website of the Constitution Society is accessible here.