The old Constitution under strain

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The years since 1997 have seen very radical constitutional reforms - for example


devolution
freedom of information legislation
the Human Rights Act. Why has this been so and what are likely to be the effects of the reforms?

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THE OLD CONSTITUTION UNDER STRAIN

 

Professor Vernon Bogdanor

 

I’m talking about the British constitution, and in particular about the recent period of constitutional reform that we’ve had, and the extent to which that is altering our traditional understanding of the British constitution, whether we are in fact developing a constitution in the sense that most other countries have it.

Last time, I began by asking what a constitution was, and saying that it combined three different elements: firstly, a preamble talking about the aims of the state, the aims that a state was trying to achieve; secondly, a kind of organisation chart of how things worked, and in that sense, all sorts of organisations have constitutions, not just states like America and France and Germany, but international organisations like the United Nations or NATO, and much simpler things at home like your local golf club and tennis club, they have constitutions, how they’re organised, how it all works, how the president is chosen, the secretary and so on, very straightforward things; and thirdly, the third element in constitutions is a Bill of Rights, which protects people’s rights against not only the government but, in a sense, against themselves, against the majority. There are some things that majorities can’t do. For example, in the United States, Congress can’t make any law restricting freedom of speech or religion, so even if the majority in America want to do that and vote for a Congress to restrict those laws, they simply cannot do it.

Britain is one of the very few democracies in the world, there are only two others I think, New Zealand and Israel , that haven’t got written or codified constitutions. That’s because of the peculiarities of our history, that we didn’t actually have, as it were, a constitutional moment when we began, as America did when she broke off from Britain, or France after the war, or Germany after the war, or a country like India when she became free of British rule. We never actually began; we’ve evolved through history since the 17 th Century in a fairly peaceful way, so the question really never arose of having a full scale constitution. The issue behind this series of lectures really is whether we are not developing a constitution in perhaps a typically British piecemeal, pragmatic and rather muddled way.

The question I want to ask today is why have we had all these reforms?

One obvious answer, if you ask in a democracy why you’ve had a large reform era, would be that there had been popular clamour for these reforms, and that would certainly have been true in many past eras of constitutional reform in Britain. For example, in 1832, we had the so-called Great Reform Act, the first rationalisation of our electoral system, which added many people to the franchise, and it was a tremendous political battle. The House of Lords, as you might expect, resisted it, the King wasn’t too keen, there were riots and great popular pressure on the government to bring it through. And then again, if you look at the history of women getting the vote, the Suffragettes and so on, you had great popular pressure. As everyone knows, militants chained themselves to railings, threw themselves under horses and blew up pillar boxes. There was a massive campaign for those reforms, and it was eventually secured in 1918 after the First World War. I think you can’t give that same answer for the current series of reforms. There hasn’t been tremendous popular clamour or even really tremendous popular interest perhaps outside Scotland, but in England, certainly not tremendous popular interest in these reforms, rather sadly I feel for the sale of my books, but there it is!

Look at an event which you’d think might excite people, like the election for the Mayor of London. There was perhaps some pressure to have a directly elected Mayor of London, and we’ve had two elections, and in each of them, Ken Livingstone has been a candidate and has won. People tend not to be neutral about Ken Livingstone, they’re either very strongly for him or they’re either very strongly against, so you would think perhaps that there’d be very large numbers of people voting in the election for the Mayor of London, a new institution, but in fact in the year 2000, in the first election, just 34% voted, that’s just one in three of Londoners, even though many Londoners have said we want a Mayor, and many Londoners said the best Mayor would be Ken Livingstone, and other Londoners said not at any price! Whatever else one says about Ken Livingstone he’s a man who does excite interest and publicity, so it’s fair to say there isn’t a massive clamour of popular pressure for constitutional reform. Why then have we had these reforms?

I think the answer lies in what has happened at the elite level of politics, at the reactions of party political leader in particular, and opinion formers in general, to things that have happened to Britain in the last 30 or 40 years, and perhaps particularly in the last 25 years. Let me read you a comment which was made in the early 1950s to a visiting American sociologist, a very distinguished man. He was at a dinner party in 1953 and he heard an eminent man of the Left say in utter seriousness that the British constitution was as nearly perfect as any human institution could be. He said he looked round the room thinking this was intended as a joke, but people took it absolutely seriously and everybody agreed with that. I suspect there are not many in this audience who would take that view today, even amongst people who are opposed to constitutional reform. I don’t think anyone would say that the British constitution was as nearly perfect as any human institution could be. But it is understandable why people held that view in the 1950s because the British political system had survived a terrible war, which had destroyed the constitutions of almost every state of continental Europe, and our parliamentary system had survived, triumphantly, and when we began to decolonise after the War, the new democracies in countries like India and the African continent and so on, they adopted the Westminster model of government. It wouldn’t have occurred to them to do anything else, and you can still see in many ex-colonies the kind of imitation of Westminster, with the speaker with the wig and the similar kind of parliament with the government on one side, the opposition on the other, the adoption of British institutions.

There’s a great contrast with that if you look at the more recent wave of democratisation following the fall of Communism in Central and Eastern Europe in the 1990s, because if you look at the new democracies there, not one country has adopted the British system. The most favoured model has been, paradoxically in some ways, it certainly would have been thought to be 50 years ago, but the most favoured model has been the German model, with proportional representation and many of the other German mechanisms, though some countries have adapted the American model to their own purposes. This symbolises at least a feeling of opinion about the nature of the British constitution.

If one compares the Britain of 1950s with the Britain of today, the main difference one would find is a very considerable loss of general national self-confidence. In the 1950s, people thought we were on the brink of a new Elizabethan age, we’d been very successful in the War, we’d established a marvellous welfare state, and Winston Churchill again became Prime Minister, symbol of victory in the War, and so on. Perhaps an anecdote here might make the point for me. I was once at a seminar with the former Labour minister, Tony Benn, and I was puzzled by the fact that he’d entitled his diaries, dealing with the 1950s, I can’t remember the precise title ”Days of Hope” or “Years of Hope”, but anyway the word “hope” was in the title. I said “Why did you call your diaries “Days of Hope” or “Years of Hope”? After all, the Labour Party, which you belong to was in opposition for a lot of that time, why a time of hope?” He said “It seemed in that period that there was nothing this country could not do, that we’d won the War, we’d created a new seemingly fair educational system, we’d set up the National Health Service, we’d set up a general social security state, we’d secured full employment, we’d decolonised, on the whole peacefully and seemingly successfully, we’d established a system of collective security and therefore resisted aggression and it seemed we were in a strong position to keep the peace. It seemed that we were in a very, very favoured position.” On the whole, people don’t believe that to the same extent today, that self-confidence has gone. It’s perhaps the most important fact about British post-War history: there have been many disappointed expectations. From really I think the 1960s, many people began to believe that Britain was falling behind other countries economically, and that we weren’t doing as well as we should have been doing. This led people to all sorts of quests for how they could remedy that situation, and constitutional reform came to be one of them – constitutional reform was a response. You may say that the very extent of all these reforms over the past few years is itself evidence that something is wrong. A great constitutional theorist of the 19th Century who you may have heard of, called Walter Bagehot, who wrote a book called “The English Constitution” – he should have called it “The British Constitution”, he called it the “The English Constitution”, and England and Britain people then took as synonymous – but he made this rather perceptive comment. He said “A happy man is not always repairing his house”, and if you’re always mucking about with your political institutions, you’re not very happy. When we were very confident in the 1950s, it wouldn’t have occurred to us to reform our constitution. So one general answer to the question I’m asking is a general loss of self-confidence.

But to put that more explicitly, I think this affected politicians on the Right and politicians on the Left in different ways, and I want first to deal with the way it affected politicians on the Right of politics. A politician on the Right tended to say that our system of government gave too much power to a party that was elected on a minority of the vote. A Conservative Lord Chancellor in the 1970s and 80s, Lord Hailsham, coined the famous phrase “elective dictatorship” to describe our system, because he said that once a government was elected, there were no constraints on its power, it could do more or less what it liked. The trouble was with our system, he said, at that time, that a government of the Right put forward its own nostrums, but then a government of the Left came and overturned them, and then a government of the Right overturned those again, and so it went on without making progress. The obvious example, which many people not only on the Right in politics gave in the 1960s and 70s, was the steel industry, because the Labour government after the War nationalised the steel industry, the Conservative government in the 50s led by Churchill de-nationalised it, and when Labour got back to power in 1964 under Harold Wilson, they re-nationalised it, and then the Conservatives de-nationalised it. You may say it’s very difficult to make progress with an industry when it’s continually changing ownership, that instead of perhaps dealing with progress, that people who are running the industry have to spend all their time on reorganisation.

People said the same was true in dealing with the very complex problem of the relationship between government and the trade unions. They said that one government would come to power and it would say we have to find a way of dealing with inflation, and the best way of dealing with it, they said then, was to try and get trade unions to moderate their wage claims, either voluntarily or through the use of the law. It was then a policy called an incomes policy. The difficulty with that was the opposition party could always say, well the government’s being very unfair to wage earners, they’re holding their incomes down, and if we got to power, we could raise their wages by more because we’d be more successful at running the economy. And therefore trade unions and wage earners would say, well why should we allow ourselves to be constrained by the incomes policy of this government, let’s vote for the opposition and then they will give us a better deal. Then when the opposition came in, often their hopes weren’t satisfied, so they had to resort to the same kinds of policies, but the previous government which had been in the opposition said exactly the same, said you know you’re getting a bad deal from this government, we’d give you a much better deal, and so on. So it proved very difficult to get an agreed line of policy between government and the unions. Critics on the Right said that this problem was made more difficult to resolve by the very close links between the Labour Party and the trade unions, so that the Labour Party they said always had an interest in destroying any incomes policy put forward by a Conservative government, and therefore it made it very difficult to get any progress in that area of policy.

People who thought in this way, by no means necessarily a majority on the Right, but there were some on the Right who thought in that way – Margaret Thatcher certainly didn’t, but there were a number of other Conservatives who did. They said, if we look at another political system, like say that in Sweden or Scandinavian ones in general, or the German system, they don’t have this continual ping pong, this kind of adversarial politics, and that’s because they have proportional representation. They said with proportional representation, you tend to get coalition governments, and although people in Britain had tended to look rather askance at coalitions, they said coalition can be a good thing because it encourages consensus. Instead of having one government overturning everything the previous government’s done, you have a government building on what that previous government has done and a much broader search for agreement in society. They said, and this is talking about the 1960s and 70s when Germany was doing much better than this country, they said that the reason Germany is doing better and the reason Sweden is doing better is because they don’t have these continual changes of policy.

Others, again not only on the Right, but others said that one of our problems was that we were too centralised a government. They said that therefore the energies of people living outside London , living in what perhaps politicians patronisingly called the regions, that the energies of people outside London were not fully used in economic and social policy, they weren’t considered much. They said that if you look at the democracies around the world, Britain, together with perhaps Japan, is the most centralised country in the world, that Britain, with around 55 million people, was governed from a single point in Westminster, whereas if you looked at other countries, for example the United States, it was a federal country, you had the federal government, the central government in Washington, but also the state governments. If you looked at Germany, that too was a federal government; it had the central government, which was then in Bonne, it’s now moved to Berlin of course, and then you had local governments. If you looked at Italy, they too were adopting a regional system. People said if you devolved power, if you decentralise power, either to local authorities but also in Scotland perhaps and Wales, where it’s particularly wanted, to national parliaments, you would then be able to mobilise much greater energies on the part of people to resolve their problems.

So these are two factors I think of some importance: first, that some people objected to the ping pong of politics, this way and that way, and problems couldn’t be resolved, and secondly, people said Britain is vastly over-centralised. The movement for constitutional reform was given a very great fillip, great impetus, by our entering the European Community, as the European Union was then called, in 1973.

That is something of very fundamental importance, because firstly, this exposed us much more than we had been before to other political systems, which ran things in different ways, seemingly more successfully, at that time. Germany, the paradigm example, seemed very successful, with a totally different political system from ours, with a constitution, a federal system of government, proportional representation and so on. I once heard at a lecture, a former Prime Minister, Edward Heath, who very much represents the feeling of this time, say, “After the War, we reconstructed a German system, and we gave them three things. We gave them a federal system of government, we gave them a proportional representation electoral system, and we gave them a modernised system of industrial relations. Now why can’t we now give ourselves these things?” That very much summed up the spirit of the times.

But there was something else that was very important about Europe, that it threatened this very fundamental principle that I mentioned last time, which lies at the base of the British system of government, which is the principle of parliamentary sovereignty, that is the idea that parliament can do what it likes. An 18 th century constitutional thinker said that parliament can do what it likes, except turn a man into a woman and a woman into a man. In fact, that is not quite correct, because if parliament says that for the purposes of the law a man is a woman and a woman is a man, then that is the case. Parliament can do what it likes. It was only by convention that parliament didn’t do terrible things like say that all redheaded people should be executed next Monday. It is by convention, there’s no law against it, no higher law, no constitution. But putting us into Europe did expose us to a higher law, because of the way Europe works. Some people talk as if this is just a matter of the new European constitution, but it isn’t. It was there when we entered in 1973, that the European Community, as it then was, the European Union, is not like any other international organisation, because it’s a higher legal order which is superior to that of the member states, superior to that of Britain, France, Germany, Sweden, and so on, rather like, though one shouldn’t press the analogy too hard, the federal system at Washington is superior to the laws of New York state and Texas and California and so on. It’s not quite analogous, but that point is a good analogy. So if British law conflicts with a European law, then that law from the point of view of the European Union is unconstitutional, is illegal.

To take an extreme example, if the British government were to decide to establish a tariff, customs duties against French goods, the European court would certainly rule that as illegal, so you cannot do that. That is illegal, unconstitutional. In other words, parliament can no longer do what it likes. We are bound by the European treaties. The European constitution, some people have wrongly said, would make European law higher than British law, but all it would do is recognise and codify the situation. It’s always been like that, but the European constitution puts it in writing, so there’s nothing new about it. You may be in favour of it, you may be against it, but it’s not something that is new.

As the European Union develops, more and more laws will be made, and therefore British parliament will gradually lose more and more of its sovereignty, for better or worse. A great British judge, Lord Denning, once said of the Treaty of Rome, which set up the European Community, was like an incoming tide, it flows into the estuaries and up the rivers, it cannot be held back. Obviously, there are a lot of people in Britain who want to hold it back, and I tend to think that those who are opposed to the European constitution aren’t opposed so much to what the constitution says but to previous moves made in Europe. They want to claw back what has been conceded before, which of course is a perfectly legitimate tactic. We could if we wished do that. But at any rate, entry into Europe is a great constitutional change, because you may argue that from the very beginning, the European Community, the European Union, was a constitution limiting what parliament can do, some form of higher law, and something very, very new in British history, and so it’s a great revolution.

I think one can’t underestimate its effects, and it led to another constitutional revolution, which we now all take for granted, namely the referendum. There was a great dispute about entering Europe. The Conservative government led us in under Edward Heath, who was Prime Minister from 1970 to 74, he negotiated entry and took us in in 1973. People said that Heath had no mandate from the people to do that, that this was a vital issue on which the people should speak. The Labour opposition of the time then took the view that entry would not be legitimate unless the people could speak, and when they were returned to power in 1874, they held our first, and so far only, nationwide referendum in 1975. That referendum was not on whether we should join because we were already in, it was on whether we should stay in or leave, and it was won by those who said we should stay in by about a two to one majority, though critics could say, well the British tend to be a conservative people and they voted to stay in because they were already in, but they said if you’d voted beforehand, before we entered, we might not have entered in the first place. Obviously, we don’t know the answer to that.

That was the first nationwide referendum, though as you know, more nationwide referendums are promised. In fact, there are three in the offing: one on the European constitution itself, which Tony Blair has promised, another on whether we should enter the Euro, which Tony Blair has also promised, and a third one, a bit vaguer perhaps, on whether we should change our electoral system to proportional representation, which Tony Blair again promised, though that you may think is more in the nature of a politician’s promise than a real promise, and it may not be held, but anyway, he has said there will at some time be a referendum on that issue as well. We take this for granted now, but anyone who remembers the years before 1975 will remember there was a big debate as to whether the referendum was constitutional at all, and if you look at textbooks on politics in the 1960s, they tend to say the referendum was unconstitutional, we didn’t have them in Britain. The reason they said it was that parliament was sovereign, it was for parliament to decide that our system was one of parliamentary government or representative government, and parliament should make this decision. But you may turn the argument on its head, because you may say, well if parliament can do what it likes, parliament can hold a referendum if it so wishes – why shouldn’t it? – and in the end it did.

It’s worth asking why this referendum was held, and I think there are two reasons, the first less important than the second. The first was that Europe was an issue on which the major parties were divided. Edward Heath’s Conservatives, or the Conservative Party at that time, was broadly, certainly much more enthusiastic about Europe than it is now, but there was a very strong minority in the Conservative Party that was opposed to entering. The Labour Party was even more split because the official position of the Labour Party, you may think oddly in the light of today’s political alignments, was rather sceptical, but there was a very important minority in the Labour Party of people who thought we should enter. Both parties were split on the issue, so it seemed that the normal to and fro of party politics wouldn’t be sufficient to resolve the problem.

But I think the second reason for having the referendum is really much more important than that, and it’s this: that many people felt, and I think probably rightly, that on so important an issue, it would not have legitimacy unless the people themselves gave their verdict. That’s also the argument for having the referendum on the European constitution, on entering the Euro, and the non-nationwide referendums on matters like devolution, the Mayor of London, and so on. You may say a major constitutional change of this kind needs more than simply a parliamentary vote. The people themselves need to be consulted, because in a sense, it’s more than the everyday coinage of politics, it’s something very fundamental, shifting the basic machinery, if you like, shifting the basic furniture, and on that sort of issue, it’s not enough just for MPs to decide, the people themselves have to be given a voice. Anyway, that argument has been accepted.

It wasn’t noticed much, but it had been used in the Northern Ireland context. In 1973, a referendum called a border poll was held as to whether people in Northern Ireland wished to remain with Britain or to join with the Irish Republic . You won’t be surprised given the majority of Protestants in Northern Ireland , that the majority said they want to stay with Britain . But the usefulness of the referendum was slightly weakened because the Catholic minority boycotted it and said it was a useless exercise. But still, the argument about Northern Ireland is similar, that the Northern Irish shouldn’t be asked to change their political allegiance without the consent of the people; parliament itself can’t do it, you need popular consent.

Some people might want to extend this argument, because they may say, all very well, it’s nice to be asked about whether we want to join the European Community, but there are many pressing issues a bit nearer home I’d quite like to be asked about – what sort of schools we have in the neighbourhood, for example, or how high the council tax should be in the local authority budget, and things of that kind, and all these other sorts of issues. You may say, if the government can ask me a question about whether I want to join Europe or not, why can’t I also give my view on the size of my local council tax or the types of schools in my district and so on? This is a powerful fuel of the constitutional reform movement, the referendum. People say, we’re now a mature electorate, we’re not prepared simply to accept what MPs say, we want to decide for ourselves on these issues. This is one very important dynamic of the constitutional reform movement that people wish to be consulted. They say simply because MPs decide or Councillors decide, it’s not enough, we should have more referendums, more ways of consulting people, the old fashioned methods will no longer do, we want to decide for ourselves. You can’t underestimate the importance of that sort of feeling.

I’ve so far describe views which are perhaps slightly more on the Right than the Left. Some people on the Left did hold them, but attitudes towards constitutional reform changed very considerably during the period of 18 years of Conservative rule, from 1979 to 1997, under Margaret Thatcher, who was Prime Minister from 1979 to 1990, and then John Major who was Prime Minister from 1990 to 1997. This was the longest period of one party rule this country has had since Napoleonic Wars, for nearly 200 years. It’s very important for this reason, that people said, well all right, we haven’t got a constitution, so there are no formal checks and balances, but there is a real check and balance because the opposition will win power at the next election. If you don’t like what the government does, we’ll vote in the opposition. Governments won’t go too far out on a limb because they’re always very worried about the next election, and the opposition might go too far out on a limb, so there’s a kind of unspoken consensus that governments will take account of views of the whole community before taking action, and that therefore we have an informal constitution, informal checks and balances, through the alternation of governments in office.

But with this 18 year period of government by one party, some people, and particularly obviously people on the Left, said this is no longer enough. They said that the Conservatives were using their period in government to strain the conventions of the constitution to the limit. Some of them said in particular it was very wrong of the Conservatives to abolish the Greater London Council which then existed, which had been under the leadership of Ken Livingstone, who was then I think to the Left of what he is now, and it was abolished by the Conservatives in 1986. People said this can’t be right, you shouldn’t be able to abolish an authority just because you don’t like it, because it’s too Left wing, and this isn’t what previous governments have done. The Labour Party, they said, in office, didn’t abolish local authorities, or Right wing previous Conservative governments didn’t abolish authorities they didn’t like when they were Left wing, and doesn’t this show a weakness in the British constitution if you strain the conventions to the limits? People said Margaret Thatcher’s doing that, in particular Margaret Thatcher, and perhaps going a bit too far. Let’s look at the basis of Margaret Thatcher’s position of power. In 1983 and 1987, she won huge landslide victories. She had an overall majority of 144 in 1983, and an overall majority of 100 in 1987. On each occasion, she won just 42% of the vote. So if you look just at the number of seats in parliament, you’d say she was enormously popular, she won a huge landslide. If you look at the number of votes she got, you can say, well nearly three-fifths of the country voted against her, she wasn’t so popular when three-fifths of the country did not vote for her of those who voted.

Interestingly enough, it’s paralleled in the situation of the Blair government in recent years. In 1997, Mr Blair won a majority by I think 170-something, I’m sorry I haven’t got the exact figure, and in 2001, 165, but on each occasion he won 43% of the vote, a bit more than Margaret Thatcher, so it’s exactly the same. Four of the last five British elections have been landslides, but in each of those landslides, nearly three-fifths of the country, the majority, have voted against the government of the day. People noticed this, or some did, in the 1980s, and said Margaret Thatcher is acting too dogmatically, that would be bad enough if the majority supported her, but it’s even worse if she’s only got the support of the largest minority, and people said we thought democracy was about majority government but it seems about the government which has the largest minority. The majority are really against the government, doesn’t this really make a case for reforming the electoral system and having proportional representation? Obviously, that argument was very powerful because people said the electoral system no longer gives a true picture of the state of opinion in the country. If it had done that, the Conservatives would have been the largest party in parliament, but they wouldn’t have had an overall majority, and you might say similarly with Mr Blair today, that he wouldn’t have an overall majority because he hasn’t got a majority in the country.

These worries were felt particularly strongly in Scotland and Wales , because there the Conservatives were very much the minority party right through the 1980s and 90s. If you take the 1987 General Election, when the Conservatives had an overall majority of 100 in the country as a whole, in Scotland they’d had just 10 out of 72 Scottish seats, and 8 out of 38 Welsh seats, so the Scots and the Welsh said the English may want a Conservative government, that’s up to them, but why should we have to put up with it when we vote strongly for other political parties? That very much fuelled the argument for Scottish and Welsh devolution. They said we want to choose our own government, and we don’t want to have to put up with reforms in health and education and other things that the English may want, good luck to them, but we don’t want them ourselves. This situation got worse I think when, in my view rather ill-advisedly, the Thatcher government tried out its reform of local government finance, the Poll Tax - the Community Charge is the formal title, it was always known as a Poll Tax – they tried it out in Scotland first, and the Scots said this is certainly one reform we don’t want and we never voted for it. The Conservatives are in a minority here, why should we have this? We want a Scottish government of our own which will adopt Scottish views on local government finance. Therefore you can see how this fuelled the argument for devolution in Scotland and Wales , the fact that for 18 years they were ruled, as they saw it, by a government which they hadn’t voted for, which as they saw it, didn’t respect their particular conventions and views about government, but just, as it were, rode roughshod over their views.

Then people said, well if governments have these large majorities and do what they like, couldn’t it be that our rights could be in danger? No doubt the governments of Margaret Thatcher, John Major, Tony Blair, were very concerned with people’s rights, but after all the dangers there they could say from a majority, and so they said don’t we need what most other countries have, particularly the Americans, don’t we need a Bill of Rights to protect our rights against a majority? People who said that said that we’ve got an instrument to hand, we’ve got the European Convention of Human Rights. That has nothing to do with the European Union, it relates to an older body called the Council of Europe. After the War, the Council of Europe was set up. It has no power over individual countries, but all the democracies in Europe were part of it, and they drew up a Convention of Human Rights. We were the first to ratify that in 1951, but it wasn’t part of our own law. It is now, through the Human Rights Act of 1998, and I will be talking about that in some detail later on, but people said let’s bring these rights home, and have a Bill of Rights, which most other countries have.

Then other people said well, one way of checking a majority government like Margaret Thatcher’s would be to strengthen the second chamber, strengthen the House of Lords. They said at present the House of Lords is too feeble to resist a government because then two-thirds of the peers were hereditaries, the rest were nominated. It’s not democratic, it’s not representative, let’s have an elected House of Lords, they said, and then that would act as another check on government and prevent it going too far out on a limb.

So you had all these streams of thought. I think the main significance of the 18 years of Conservative government from the point of view of our theme is that it led to a change of attitude on the part of the Left, particularly the Labour Party. people who hadn’t recently been interested in constitutional reform. They became much more sympathetic to a lot of these measures that I’ve been describing, and in particular to devolution and to human rights reform, a Bill of Rights, that previously had been very hostile to judges and so on.

Let me summarise then these main proposals for constitutional reform. The first one that we talked about was the use of the referendum, and people who favour that say there should be much wider use of the referendum, much greater consultation with people, not only on the huge issues like what we do about the European constitution, but what we do about very local services, things that are really of much greater direct importance to people perhaps than these large scale issues. Secondly, people say let’s look at our electoral system, perhaps we ought to change our electoral system, and if you’ve followed these matters, you’ll know that in the elections for the London Assembly, we used proportional representation, and people in the Scottish Parliament, the Welsh National Assembly, they use proportional representation. In November, there’s going to be a referendum on whether there should be a regional assembly in the North-East of England. At present it looks as if it will be rejected, but if it’s accepted, the method of election for that will be proportional representation. So there is some acceptance of proportional representation, though not obviously as yet for Westminster, but the argument is much more heard than it was. Again, if you look at the immediate post-War period, proportional representation was dismissed as something for cranks. Continental countries had it but that was why they were unstable it was said and we didn’t need it. So first the referendum, proportional representation, then devolution, which has begun, we’ve now got devolution in Northern Ireland, though it’s suspended at the moment, in Scotland and in Wales, in London, and the possibility of it in the North-East, and then possibly in other regions which want it. So that also is a very active issue. Fourthly, the question of a Bill of Rights, which we now have in some form, and the Human Rights Act of 1998, which means that the European Convention can be used as part of our law and judges can use it in making their decisions. And finally, an issue, the House of Lords reform, which has been one phase of reform, namely all the hereditary peers except 92 were removed from the House of Lords in 1999, and that was seen as the first phase of a two-phase reform, the second phase being to make the House of Lords more representative, more democratic, but the government’s a bit stuck on that at the moment. They’re not quite sure how to proceed, and I think they’re working something out for their next election manifesto.

Some would say all of these reforms are leading eventually, or could lead, to a fully codified, fully written constitution. They say that through this very British, piecemeal, ill-thought out, if you like, pragmatic muddle method, we are moving towards what other democracies have – a fully codified constitution. Obviously, no one yet knows what the answer will be, and perhaps we won’t for many years.

 

© Vernon Bogdanor, Gresham College , 26 October 2004

 

This event was on Tue, 26 Oct 2004

Vernon Bogdanor

Professor Vernon Bogdanor FBA CBE

Professor of Law

Vernon Bogdanor CBE is Emeritus Gresham Professor of Law, former Visiting Gresham Professor of Political History, Research Professor at King's College London, a Fellow of the British Academy and an Honorary Fellow of the Institute of Advanced Legal Studies.

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