Monday, 1 June 2009

Constitutional reform

It is curious how the revelations of abuse by some MPs of the expenses system that MPs have created for themselves have stimulated calls for constitutional reform.

This probably suits both sides of the argument. No doubt those MPs who are supporters of the constitutional status quo (most of the parliamentary Labour party probably) will be relieved to see attention passing to something other than them, and electoral reformers see it as their approximately once-every-decade chance to wave the flag for proportional representation. In response to these pressures we have the Prime Minister proposing to set up a "National Council for Democratic Renewal" to be formed of, wait for it, Ministers in government. Anything more guaranteed to promote centralist "top down" policy forming and minimise the prospect of democratic renewal would be difficult to imagine.

Justice Committee - Devolution: a decade on

At the same time, by co-incidence the report of the Justice Select Committee of the House of Commons (the departmental Select Committee covering the Ministry of Justice) was published at the beginning of last week looking at the British constitution from the perspective of 10 years of devolution. Whilst recognising the present anomalies of constitutional arrangements for people in England, their report was also a depressing read for its inability to get to grips with solutions. The evidence given to the Committee was interesting however, particularly that taken on 19 February last year (which can be seen here (parts one, two, three and four). Vernon Bogdanor, professor of government at Oxford Unitversity has (like John Curtice, professor of politics at Strathclyde University) for some time beaten the drum for the view that there is no constitutional problem to address with respect to the position of people in England arising as a consequence of the devolution of executive and legislative powers elsewhere; and that there is only a political issue to deal with from a feeling amongst some in England that their interests are not sufficiently taken into account, which can be solved by having more elected mayors along the lines of the Mayor of London as "figureheads" for the major cities.

Professor Bogdanor's criticisms of Ken Clarke's then partly-formed proposals for an English Grand Committee followed the Ministry of Justice handbook, positing a case where the UK government did not have a majority in England: "... if you had a government with a majority in the United Kingdom but another party with a majority in England, the government with the majority in the United Kingdom could not say it had a policy on health or education because that would depend on what the English MPs thought ... it would bring the Government to a halt".

Undoubtedly that situation would be problematic, but surely leaving things as they are in those circumstances would be even more problematic. It seems inconceivable that a UK government could spend its five year term enacting legislation on health, education, transport, local government and town and country planning relating to England only which was opposed by the majority of members in England, and which could only be passed by whipping its Scottish members through the lobbies in one division after another. Surely this would be bound to fuel unnecessary (and no doubt for the most part childish but none the less strongly felt) resentment between those in different parts of the UK. The fact of the matter is that in the circumstances posited, the only sensible course would be for co-operation between the government and the majority party in England, and if for a number of years legislative intervention were to dry up except on non-contentious issues, many might regard that as a good thing. The dangers of impasse where action is needed could be further diminished if my suggestion here were adopted, namely that if a particular part of a Bill relating to only a part of the UK were not to have a majority of members representing the part of the UK to which it applies on Third Reading in the Commons (in addition to a majority of the whole House on Third Reading), then by analogy with the power of delay available to the House of Lords, the part of the Bill in question could only be enacted by passing it again in the next session.

Unlock Democracy

However, some of the most interesting and intelligent evidence, both in analysing the issues and coming up with serviceable solutions, seems to me to come from Peter Facey representing an organisation to which I have not previously paid much attention called "Unlock Democracy". Of the problem, he said this:

"Theoretically, Professor Bogdanor is right, that there are 528 English MPs and they can outvote MPs from other parts of the United Kingdom, including the fourth bit, Northern Ireland, but the reality is that [the House of Commons] splits on party lines, on policy lines. The example which was given in the earlier session was that if at the next election a government is returned with a majority based effectively on MPs from Scotland and Wales and, because of the present political make-up of the United Kingdom, this is going to be the Labour party, in those circumstances it will depend on MPs from Scotland voting through legislation in England. That, I think, is the fundamental difficulty with Professor Bogdanor's position, even though, yes, he is right: there are more English MPs than there are Scottish or Welsh MPs. The problem when it comes down to it is that, if there are more Conservative and Liberal Democrat English MPs than there are Labour MPs but Labour has a majority in Westminster, that is when it becomes a real political issue. On the question of risk, which was the second part of the question, yes, there are risks in dealing with the English Question (or questions) and we should not pretend that there are not, but the bigger risk for me personally is the group which says, "Do not ask the question", because I think we have now got to a point where doing nothing is probably worse than doing something, that if we simply stay where we are and we let circumstances develop and we get into that crisis point it is very difficult then to do something, so now, when the issue is not as burning, is the time to deal with it. If it becomes a constitutional crisis because you effectively have England being governed by a party which is perceived, by the media at least, or elements of the media, as being not English but foisting policies on from elsewhere, then it becomes very difficult in a core, logical way to deal with the issue, and therefore we need to deal with it now, even though there are risks."

He advocates a national element for England within Westminster to deal with this (how this might differ from Ken Clarke's proposals for a Grand Committee or indeed mine relating to Third Reading remains to be seen), which would then take the pressure off the creation of artificial regional units within England in order to temper the West Lothian Question. One can then concentrate on realistic devolution to accord with what people want, rather than the devolution that the government thinks it should dictate. He said:

"I think one of the problems with the route we have gone down for decentralisation is that we have created government regions where even the one I used to live in in the south west has no recognition on the ground. Devon does not necessarily feel in the same region as the northern parts around Bristol. We also get this idea that you have to break England up into large units which can be given the same powers as Scotland and Wales. Kent has 1.3 million people. That is 300,000 people less than Northern Ireland, but Northern Ireland already is regarded as big enough to have those powers. Kent has more people in it than ten US states and those states, the smallest one being Wyoming, have more powers than the Scottish Parliament, so the idea in terms of decentralisation is that we have to somehow create these large units. I am not against it if the people in the north east want to have it on a regional basis but we must find a way forward which is flexible enough to allow those units to be choosing, whether those are government regions, collections of existing local government units or in some cases individual councils at the moment. Where you live, the county of Hampshire, again is a very similar size to Northern Ireland and if you include in it the unitary authorities it is larger than Northern Ireland, so we need to start thinking about some of our counties and local units as the vehicles for devolution and then look at bringing government below that down as well, not simply to have the idea that to do devolution in England we have to always create new units. Where that is appropriate, yes, but we also have to say that where there is demand that can be to existing units.


"What we are toying with the idea of is having an English devolution enabling act, which says, 'These are the powers which have already been devolved elsewhere in the United Kingdom', and if powers are then devolved later it could be be added to it, where they could be called down. They could either be asked for by existing local authorities, and if they met certain criteria they could be given to them, subject to a referendum endorsing it, or central government could say, 'We would like you to have this, subject to a referendum', or, the third option, the people themselves could call for those powers. ... The option would have to be that they could either join in with another area if they want to or they would continue with being governed by the United Kingdom Parliament. It is a messy way of doing devolution but I happen to think it goes with the grain of the governance of England"

Now this seems to me to represent a real way forward. Will it be opposed by centrists within the civil service and by the current Cabinet - most certainly, because it would offer meaningful devolution (as well as respecting people's wishes). A project of this kind could also be swamped in today's climate by that portion of the political elite on the soft left who see proportional representation as the sole or main answer to public re-engagement in politics and see now as the opportunity to promote it. There is just a chance David Cameron might pick up ideas like this, but as we found with Tony Blair, new Prime Ministers can quickly forget their zeal to deal with constitutional thorns once they have taken office and the sclerosis of power has seriously set in.

So going back to Professor Bogdanor and his unwillingness to face the issues thrown up by devolution - whilst the prospect of a UK government without a majority in England seems remote in 2010, it could occur in 2014/5. Were that to happen and a full-blown constitutional crisis to arise, the lack of vision of those such as Professors Bogdanor and Curtice in the academic community will I think have to take much of the blame.

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