Towards a new Constitutional Settlement
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The Constitution Unit is an independent research body based at University College London that is dedicated to constitutional change and comparative constitutional studies. Its work focuses on practical considerations for reform and its implications. Robert Hazell is the Founder and Director of the Unit.
Contents |
An Agenda for Gordon Brown’s First 100 Days and Beyond
- by Robert Hazell
The direction of change
Gordon Brown has indicated over the past decade the values that he believes underlie the British Constitution. Hazell defines these based on Brown’s speeches as:
- The Individual, Community and the State;
- Liberty, Responsibility and Fairness;
- and Britishness.
These values suggest certain policy options for the new government. A new Bill of Rights based on the fundamental ‘British values’ of Liberty, Responsibility and Fairness to limit State power is possible. As are policies strengthening the institutions of civil society that support communities. Increasing participation might be possible via a Citizen’s Convention on the Constitution, or putting specific reforms to referendum. The Constitution can only be measured if open and accountable, which can be achieved by halting the trend towards presidential government and restoring Cabinet decision-making with a reformed Ministerial Code of Conduct. The powers of patronage and the Royal Prerogative could be subject to parliamentary approval. Finally, Hazel urges Brown to address the ‘unfinished business’ of Blair’s wave of reforms; namely completion of Lords reform with a cross-party consensus. Furthermore a Department of the Nations could be established, and a regular procedure for consultation between Westminster and First Ministers. Finally, the recent scandals over party funding need to resolved and set right.
What is certain, Hazell argues, is that the possible changes on the basis of defined principles be coherent. The Constitution must have substantive coherence, with a plan for how the proposed reforms link together and affect the various branches of government. For example, he remarks that House of Lords reform cannot be considered distinct from the functioning of the electoral system as a whole.
The framework for reform
Procedural coherence requires that there is an effective and clear system for reform. Hazell sets out an executive structure to develop and implement policy. Firstly, an experienced and involved minister should be appointed to take charge of policy. The Prime Minister himself should take the chair of the Cabinet Committee on Constitutional Affairs. The Cabinet Sub-Committee on Devolution Policy should be revived with the Joint Ministerial Committee on Devolution. Finally, the supporting Cabinet Office should contain a small Constitution Secretariat to assist with the process.
The nature of the constitution
Before the mechanics of change are implemented, the government must decide on the nature of the changes it will effect. Essentially, it must be decided whether there is to be an entrenched written constitution or a new ‘constitutional settlement’. A written constitution, the paper notes, seems a difficult affair. There appears no real public drive for the solution, and if submitted to a referendum could be undermined by rejection or low turnout. A cross-party consensus on its contents would seem troublesome, especially given academic disagreement over fundamental principles and content. Finally, a written constitution limits parliamentary sovereignty, and Members of Parliament may be unwilling to vote against their own vested interests. Beyond practical difficulties there are many common theoretical arguments against a document. What to include, what to entrench? Related to this is whether the provisions describe the constitution or prescribe it normatively, as it should be. If certain elements are normative and entrenched, how flexible should the constitution be to the demands of future reform?
Hazell therefore considers the other options open to Brown’s government. A statement of constitutional principles could be a stop-gap but it is subject to the same difficulties as a written constitution in a gestated form.
The safest route, as the title suggests, is a new constitutional settlement. This would consist of defining some principles to guide the options the government has, perhaps by making them explicit in an early speech.
Reaching out for reform
There are various means to aid the success of constitutional reform, and ensure the process is not a top-down exercise in manipulating popular sovereignty. Hazell evaluates the methods based on the first Constitution Unit report Delivering Constitutional Reform (1996). Political consensus could be achieved in cross-party talks, both formal and informal; and in joint parliamentary committees on reform. A radical proposal by the Liberal Democrats in 1993 suggested a constituent assembly, either popularly elected or Parliament sitting in the role, charged with drafting a written constitution. Obviously such a proposal depends on the boldness of the government’s intentions. Expert advice might be gathered by a Royal Commission for the purpose, following the Kilbrandon Commission (1969-1973) and the later Wakeham Commission (2000-2001). A constitutional commission is an independent body of experts, while a constitutional convention is more widely drawn, likely comprising politicians and the public, exemplified by the Scottish Constitutional Convention (1989-1995).
Possible policies
A clear statement of intent would be for the government to resolve to limit its own power by submitting prerogatives to parliamentary approval, reinstituting cabinet government, and initiating a Civil Service Act. Returning power to Parliament would be a necessary adjunct to this, and begs the question of the composition of the House of Lords and the electoral system of the legislature as a whole. Scrutiny of the executive might be improved by the creation of specialist legislation committees to parallel the select committees, as well as a new Procedure Committee, merged with the current Modernisation Committee, with some role in parliamentary timetabling.
Brown is committed to maintaining the Union, but will likely need to address the current distribution of powers if the Scottish National Party establishes a cross-party consensus. Labour aims to strengthen the legislative powers of the Welsh Assembly without extending its competences. Hazell believes asymmetry with the Scottish Parliament should be defended where there are significant historical precedents, such as a distinct Scottish legal system, but may need to address demands for greater devolution if prevalent in the Assembly.
