Gordon’s Constititutional Reform Programme: some snags

By Brian Barder

In his statement in the House of Commons on 10 June 2009, the Prime Minister set out a 5-point programme of possible constitutional reform:

1. Reform of the House of Lords, with 80-100 per cent of the members elected.

2. Consultation on a written constitution.

3. Devolution of more power to local communities: e.g. local Government and city-regions.

4. Review of the electoral system.

5. Increasing public engagement in politics: how to get more people registered to vote, and interest young people in politics – including whether to lower the voting age.

The objectives of all these items are worthy and it’s too early in the promised consultation process to dismiss any of them out of hand. But there are snags in each, and above all none is related to any overall vision of a better and more democratic society:

1. We can nearly all agree that the house of lords should be an elected body. But should it be merely a “revising chamber” to tidy up loose ends left to it by the house of commons? Devolution to Scotland, Wales and Northern Ireland, each with its own parliament and government, has moved us (whether or not intentionally) into a semi-federal system, with the parliament and government at Westminster now trying to function as quasi-federal organs with limited powers in respect of those three devolved nations. But federal systems around the world use their federal second chambers to protect the smaller units in the federation from domination by the larger ones. That’s why tiny Vermont and North Dakota have the same number of representatives each in the US Senate as gigantic California and Texas: two Senators each, regardless of population or area. Similarly little Tasmania has equal representation in the Australian Senate with big New South Wales and Victoria. This prevents the big boys from being able to override the interests and wishes of the tiddlers in adopting legislation and approving policies. In the UK, with its huge discrepancy in size between England on the one hand and the other three nations on the other, the need for such protection is obvious: and it’s equally obvious that the place for that protection is the second chamber at Westminster. We shall need to turn the house of lords into a federal Senate with the same number of Senators elected from each of the four nations. But this can only be done as part of the process of completing devolution by moving to a full federal system. This is going to be unavoidable sooner or later: it’s in the logic and DNA of devolution. It will be a waste of time and energy “reforming” the house of lords now, while leaving its limited functions as they are, when a much more fundamental reform is going to be needed, perhaps within a decade, to give it a necessary and genuine role as part of a federal system.

2. Much the same applies to the proposal for a written constitution, but with even more force. The question should not be whether we need a written constitution, but what should be in it. Our existing constitution is riddled with anomalies and injustices. Despite limited devolution, our system is hopelessly over-centralised. We still await a suggested answer to the West Lothian Question – why should MPs at Westminster elected from Scottish constituencies vote on matters exclusively affecting England when English MPs can’t vote on the same subjects affecting Scotland if the subject has been devolved to the Scottish parliament? What constitutional reforms does the prime minister propose to meet the challenge posed by pressure for Scottish independence, a secession that would mean the disintegration of the United Kingdom? Why should the Westminster parliament and government try to combine two utterly separate and incompatible functions – as quasi-federal organs for the whole UK on subjects not devolved to Scotland, Wales and Northern Ireland, and simultaneously as a parliament and government for England, for which their composition is wholly unsuitable? What justification can there be for denying to England the devolved powers transferred to Scotland and the other two nations? (I have referred earlier to the need for a more radical reform of the house of lords than merely making it an elected chamber.)

It would be utter madness to set all these defects, challenges and anomalies in concrete by embedding them in a written constitution now, when our constitutional arrangements are in transition: that could only make it much more difficult to address the problems they create and gradually to make the constitutional changes they demand. Once a federal system is in place, it will inevitably require a written constitution, justiciable in the Supreme Court, defining the powers and relationships of the constituent parts of the federation. But to try to produce a written constitution now would be hopelessly premature: and, worse than premature, actually damaging to any hope of future reform.

3. Decentralising power by pushing it further down to the people is certainly necessary, but merely increasing the powers of county and borough councils won’t go nearly far enough. What’s needed in the first place is devolution of virtually all powers, with the major exceptions of foreign affairs and defence (which would remain the responsibility of the Westminster parliament and government), to the governments and parliaments of the four nations, including England – as in every functioning federation throughout the western world. It would then be for the four nations’ governments and parliaments to push power still further down to local and regional level, according to the wishes of the people in each nation (which won’t necessarily be the same in all of them).

4. My comments on the proposed ‘reform’ of the electoral system are here. Before we decide whether, and if so how, to change the electoral system for the house of commons, it would surely be desirable to look at the future role, functions and (drastically reduced) responsibilities of the commons as a federal organ (which in many respects it already is), producing a federal government, in the brave new world of full devolution: subsidiarity made flesh. Let’s agree on what we’ll be voting for, before we decide what kind of vote we want for it.

5. The way to get more people, including young people, engaged in politics is to give each of the four nations real power over ordinary people’s lives at a much more local level, by completing the half-finished devolution process and moving to a full federal system. Anything less will be purely cosmetic and ineffective. The idea of giving votes to children (i.e. anyone under 18) is such obvious nonsense that it doesn’t need to be discussed.

The point, then, is that all Gordon Brown’s five points are premature. They would saddle us with a permanently unsatisfactory and anomalous constitution when what’s plainly needed is first to sort out the anomalies in a coherent, long-term process, so that each of the five points falls into place as parts of an overall and radical reform. To tackle each item piece-meal is doomed to failure. Without vision, the people perish. Power to the people!