Is There A Need For Constitutional Reform?

No government in modern times has ever been elected with such a commitment to reforming the constitution as the Labour administration that won office in May 1997. Within months of its election, Scotland and Wales were on the road to devolution. Within a year, although in a very different context, the framework had been set for a devolved, power sharing government in Northern Ireland. A year after that the process was well under way for reform of the House of Lords, eliminating, in the first instance, peers whose place in the legislature was by inheritance.

In May 2000, London elected its first mayor. In early 2003, there was the affirmation of a commitment to allow English regions to choose to elect assemblies. Then in the Cabinet reshuffle of June 2003 it was signalled that the post of Lord Chancellor would be abolished and the judicial functions of the House of Lords transferred lo a Supreme Court. Above all, the government held out the promise of Britain signing up to a European constitution sometime in 2004-5, which would formally subjugate British law to European law and have many other consequences for political accountability in Britain.

All in all, it would seem that the government can look back upon a programme of continuing constitutional reform that far exceeds anything accomplished by its recent predecessors and which amounts to the upholding of promises made at the time of the 1997 general election. But how far are these things achievements? How far do they keep promises made at the election, and subsequently? And, above all, how far have they led to the better governance of Britain, and have they been a good use of legislative time and taxpayers' money that might have been better deployed? Let us start with devolution.

In Scotland, the feeling of alienation after years of what was perceived as rule by English Conservatives made the result of the devolution referendum in September 1997 a foregone conclusion. Labour's main concern was to win the ensuing election for the Scottish Parliament in May 1999, which it did by a less comfortable margin than expected, and to ensure a relatively obedient administration in Edinburgh. This proved more problematical. Labour could govern only with the help of the Liberal Democrats, and it turned out to be a coalition that damaged both parties in terms of their popular support.

The Hamilton by-election of September 1999 was won only narrowly by Labour after a surge in support for the Scottish National Party, and the Lib-Dems came a poor sixth. Former Labour supporters saw their party still taking orders from London; former Lib-Dems felt that their party was colluding too openly in this compliant government, and there was particular anger about the Lib-Dems' failure to stand on the point of principle of opposing tuition fees in Scottish universities.

By the time of the second elections in May 2003, the main feature of Scottish government was the row about the mounting cost of the new parliamentary buildings at Holyrood, and there was a growing sense among the Scots of the imperfection of the new institutions. Turnout was low, and the Scottish National Party, which had high hopes of exploiting devolution as a stepping stone towards independence, declined relative to its 1999 performance. Wales's experience echoed many of these tensions after 1999.

First, there was anger that the leader of the Labour group and eventual First Minister, Alun Michael, was imposed so forcefully by the party's headquarters in London. Before things had even reached that stage, however, a dismal turnout of barely 50 per cent in the original referendum suggested that the people of Wales were not nearly so interested in devolution as the political class – its most obvious beneficiaries – were. Devolution proceeded on the wishes of about 26 per cent of the Welsh population.

Plaid Cymru, which suffixed its name with the title 'the Party of Wales' before the 1999 election in order to widen its appeal to non-Welsh speakers, did far better in that election than anyone had predicted. By 2003, though, the honeymoon was over. The Assembly seemed to be regarded as an irrelevance by many Welsh voters, and a decline in Plaid Cymru's performance mirrored the fall in popularity of the nationalists in Scotland. In both Scotland and Wales, the main warnings voiced before the event by anti-devolutionists had seemed after 1999 to be coming true.

They argued that devolution would not be an end in itself but a vehicle through which nationalist or separatist groups could achieve the break-up of the United Kingdom. Devolution had given the SNP and PC voices and influence that they could never have dreamed of under the Westminster system. However, the novelty of having the opportunity to pursue full independence seems soon to have worn off. Another one of the anti-devolutionists' warnings – that Wales and Scotland would quickly bed down on a cushion of financial support from the English taxpayer – has very much come to pass.

Differences of opinion between the respective parts of the kingdom – starting with whether to lift the temporary ban on sales of beef on the bone in September 1999 but exemplified more clearly by Scotland's decision to ban hunting with hounds in 2002 – have helped to fuel claims that the United Kingdom is fragmenting. Only time will tell whether this is really so. However, the immediate perception is that this extra layer of government has so far achieved little except to enrich the politicians who serve in it. The English taxpayer is subsidising the exercise, and nothing has yet been done to correct constitutional unbalances.

Matters on which the English have no say in Scotland are matters on which Scottish MPs at Westminster have a when they concern the English. Scotland is overrepresented at Westminster, although that be partially rectified by the time of the next; general election, when representation is to be on the same basis as in England. Despite the establishment of administrations in Wales and Scotland, there are still ministers with responsibilities for those parties of the kingdom in London. The British Cabinet is more than a quarter Scottish.

Both the Health Secretary, John Reid, and the Transport Secretary, Alistair Darling, have responsibility for policies that do not – because they represent Scottish seats affect their own constituents. It seems as the one set of constitutional injustices – if, indeed, is really what the old system amounted to – merely been replaced by another, although replacement is one in which the rights of majorities no longer (unlike in most democracies) count anything. House of Lords reform is similarly suspect. First, the programme was embarked upon without real evidence that the public wanted it.

Labour argued that it was being obstructed in the Lords: but, in fact, the Conservative majority there operated the Salisbury-Addison convention, whereby majority agreed not to defeat the minority on; matters that were manifesto commitments and that therefore had democratic legitimacy. Also, when Labour was defeated on other issues it was often because of its whips' failure to get the party's vote: many of the vast number of peers created it on the Labour benches since the victory in May 1997 felt that their attendance at the Lords was optional.

In the last resort, Labour can always beaten to use the Parliament Acts to force through any legislation the peers obstruct, but that has not been necessary. The Prime Minister decided to proceed with an interim reform of the lords, which in the first instance was to include abolition of the voting rights of hereditary peers. However, this seemingly inflexible principle was soon diluted when it became clear to the Prime Minister that he did not really want a more thorough arm, such as an elected second chamber ose democratic legitimacy would challenge the authority of the House of Commons.

So a deal was struck with the Conservatives, who were allowed the retention of ninety-two hereditary peers of all parties to maintain an element in the upper house that was not dependent on recent patronage. However, in the summer of 2003 the new and supposedly last Lord Chancellor, Lord Falconer, signaled the intention to remove the last hereditary peers. The Prime Minister also appointed a Royal Commission on the Lords, under former Conservative cabinet minister Lord Wakeham, which argued for a partially elected House.

However, it then became clear that the Prime Minister was more than happy with the so-called interim solution. The findings of the Royal Commission were iced to one side, where they remain. The main obstacle to reform appears to be the fear the Prime Minister has of doing anything to the House of Lords to make it more democratic, and therefore more legitimate in any challenges it might make to the will of the House of Commons. That is why The Prime Minister has confirmed that, once the hereditary peers are finally removed, he will countenance no elected element in the Lords at all, but will have an entirely appointed House.

This was similar to another, even less fruitful, exercise in constitutional reform: the commission under the late Lord Jenkins of Hillhead that investigated the possibilities of introducing proportional representation for Westminster elections. This was consigned straight to the wastepaper basket. The only hope of PR is that it might, in return for a promise of good behaviour from the Liberal Democrats, be introduced into local government elections. What it and the semi-abortive reform of the Lords both show is the determination that politicians in power have to hold on to that power.

Mr Blair will not introduce PR, because it means that his party will never govern on its own again. He will not allow his huge majority to support the creation of an elected or partially elected House of Lords, because his authority as a Prime Minister sitting in the House of Commons, and indeed the will of that whole House, which is at present obedient to him, would be compromised. Indeed, the government has advanced only such constitutional reforms as it believes will not compromise it. On the devolution issue, this was classically hubristic.

In the immediate aftermath of the 1997 general election, the party was so popular that it could not but believe that it would take power in Scotland and Wales and hold it indefinitely. The actual elections, two years later, presented a very different picture. It was an obvious case of failing to think through the consequences of change: a failure by Labour to see that the power it enjoyed, and wished to continue enjoying, was dependent to a large extent on the very institutions it was now setting about dismantling.

It has since shown more caution, although if it adopts the proposed European constitution that caution, and a thousand years of British constitutional independence, will be thrown to the winds. Unsurprisingly, the party that now expresses the greatest enthusiasm for radical constitutional change – English regional government, elected mayors, proportional representation, an elected second chamber and an unspecified reduction in the few remaining powers of the monarch – is the Liberal Democrats, who have no realistic chance of forming a government.

The Conservative Party, which despite being so against constitutional change has engineered more than its share of it over the years (such as the peerage reforms of 1958 and 1963, and the 1972 European Communities Act), still has to take a defined position on many of these questions, although it has announced its outright opposition to the proposed European constitution. The significance of the European proposals is that they must now take centre stage in the government's programme of constitutional reform.

They will also, though, take the whole question out of the government's hands to some extent as the pace is being dictated by an external power. The government refuses to consult the electorate on them. The prospect was not included in the 2001 Labour manifesto. This pursuit of vast constitutional change without a mandate could yet derail not just the programme of reform but even the whole government.