Constitutional change and the future of parliamentary democracy
24 November 2009
Magna Carta Institute, Brunel University
An abridged version of a lecture given by Jack Straw at Brunel University's Magna Carta Institute on Monday 23 November 2009.
The full text of the lecture can be found at the Magna Carta Institute page of the Brunel University website.
[Check against delivery: this is the prepared text of the speech, and may differ from the delivered version.]
The Right Honourable Jack Straw MP, Lord Chancellor and Secretary of State for Justice:
Introduction
Brunel University paid me a great compliment in July 2007 with the award of an Honorary Degree of Doctor of Laws. The award was made by the University’s Chancellor – Lord Wakeham – a man I have long admired and who is here tonight.
It is therefore a double honour for me to have been invited to deliver the Magna Carta Institute lecture. The Magna Carta Institute is a very welcome development. I’m glad that the Institute intends to shape public as well as academic debate. The Director of the Magna Carta Institute, Professor Justin Fisher, is well placed to lead that mission, having contributed to the independent review of party funding which led to the Political Parties and Elections Act – which became law this year.
Party funding reform has been just one of a number of constitutional reforms enacted by the current government. It is about the impact of constitutional change, and the future of British parliamentary democracy, that I want to speak this evening.
Our system of parliamentary democracy is the product of many centuries of change, some revolutionary but most gradual and evolutionary, since the Magna Carta was issued in 1215. Yet Magna Carta remains synonymous with the idea that individual liberty and freedom under the rule of law lie at the very heart of our conception of democratic government.
However, questions about the precise balance to be struck in the tension between the rights of the individual and the rights of the community, and between what constitutes the appropriate sphere of the private as opposed to the public in society, fundamentally shape the competition of political parties.
Likewise great questions arise about the nature of the political institutions and structures which have developed over time. We are the inheritors of a Parliamentary system shaped especially in the 19th and early 20th centuries, which placed the concept of parliamentary sovereignty – the notion that no Parliament could bind the hands of its successor Parliament; that all that had been done could be undone – at the very centre of the ‘unwritten’ constitution.
But developments in recent times have led some to argue that the doctrine of parliamentary sovereignty which Dicey and Bagehot described in the 19th century no longer applies in the 21st.
Indeed, Professor Vernon Bogdanor in his latest book, The New British Constitution, asserts that under the current government an entirely new constitutional settlement is replacing the ‘old’, with profound effects for the political order and the relationship between citizens and the state.
Bogdanor forecasts a codified constitution and new forms of ‘direct’ democratic engagement to reconnect a public which is said to have become dislocated from the political process.
So let’s examine those claims – to assess the constitutional changes of recent years; the principles which underpin them and their impact; as well as looking ahead to possible future reforms.
In so doing I want to engage, in particular, with the arguments of those who advocate a shift from representative to direct democracy, and, if I may say, to inject some realism into the debate about how far constitutional reform can stimulate public engagement in politics.
So what’s happened since 1997?
In an important contribution to a book on this, Andrew McDonald and Robert Hazell, both with civil servant and academic backgrounds, pointed out that if we want to appreciate fully the extent and pace of reform since 1997 we need to use as a reference point Britain’s record of constitutional change over the twentieth century.
They note that the first quarter of the century witnessed some major reforms, notably in respect of the franchise (1918, 1928) and the primacy of the House of Commons (1911). But they claim that ‘from 1928, when the franchise was extended (fully) to women for the first time, until the Callaghan government of the 1970s, constitutional change did not occupy centre stage in British politics’. Some constitutional refinements were made, ‘but Governments did not seek to change the fundamental architecture of the state’.
That said, this period witnessed one development of profound and continuing constitutional importance and no little political significance – the 1972 European Communities Act.
That Act heralded Britain’s membership of what was then the European Economic Community (EEC) and is today the European Union. For some it marked the end of traditional parliamentary sovereignty by making European law superior to legislation enacted by the Westminster Parliament.
However, the 1972 Act can still be repealed by a simple majority in the Commons and the Lisbon Treaty gives member states of the European Union – for the first time – an explicit right to secede.
However, whilst the European Communities Act was of constitutional importance, the impact of the change has been more limited than some suggest. As political commentators such as Peter Riddell have argued, EU-related debates have seldom impinged on domestic constitutional concerns.
The more obvious constitutional issue that emerged in the 1970s was the question of devolution within the United Kingdom. The Callaghan Government passed legislation on devolution for Scotland and Wales, subject to popular support. Referenda were held. In Wales the principle of devolution was decisively rejected by the voters. In Scotland, it was narrowly approved but failed to reach the necessary threshold of 40% of the electorate voting in favour prescribed in the legislation, and so fell away. A few weeks later the Callaghan Government was voted out of office...
[Political content]
...It is worth quickly listing the changes we have made:
- devolution to Scotland, Wales and Northern Ireland
- creation of the Greater London Assembly and an elected Mayor for London
- ‘modernisation’ of the House of Commons
- the Human Rights Act 1998
- new electoral systems in the Euro elections, devolved assemblies and in London
- House of Lords reform
- local government reform
- freedom of information
- new controls on party funding.
The latest stage in this unfolding process came last month when the new Supreme Court took its place at the pinnacle of the UK’s system of justice. Its establishment represents a potent symbol of the separation of powers.
Taken together, few would dispute that these reforms add up to a significant package of constitutional reform. But three questions emerge at this point:
- First, what were and are the guiding principles underpinning the government’s constitutional reform programme?
- Second, what has been the impact, so far, of these reforms?
- And third, will they stick? In other words, has the government created a new constitutional settlement?
What were the guiding principles?
While the government’s constitutional reforms have rightly been bracketed as ‘historic’, the coherence of the overall programme has sometimes been called into question. The Economist, for instance, carried an article in 1998 describing our proposals as amounting to a ‘Heath Robinson constitution’; ‘a series of ad hoc solutions rather than a coherent constitutional strategy’.
Now it is true that the reforms of the past 12 years did not stem from a single master plan. We did not start with an equivalent of the 1787 Federalist Papers, through which the Founding Fathers defined their proposed US Constitution and expounded its underlying principles. But they were starting with a blank sheet and we were not. Indeed, the Economist’s criticism could have been laid against any of the lasting constitutional changes made in the last eight centuries, from and including Magna Carta and the 1689 Bill of Rights. Each of these was ad hoc. To produce the environment for a single holistic strategy has always taken seismic, often violent change, through war, occupation or revolution to trigger it.
In keeping with our constitutional traditions, the government’s approach has been a series of incremental, tailored responses to particular problems, each with complex histories of their own. But whilst we have acted more like a renovator than an architect, our actions have been consistent and guided by certain overarching aims and principles.
Lord Irvine outlined some of these in his 1998 Constitution Unit pamphlet, which stated: ‘Our objective is to put in place an integrated programme of measures to decentralise power in the United Kingdom; and to enhance the rights of individuals within a more open society’. Alongside these three constitutional objectives, McDonald and Hazell identify two more in the government’s programme: democratic reform and innovation, and a rebalancing of the relationship between the executive and the judiciary.
I agree that these five themes: decentralisation, stronger citizens’ rights, greater openness, democratic reform, and reform of the judiciary, capture the essence of what the government’s constitutional reform agenda was and is about. But what ties them together is the issue of ‘power’.
Our constitutional arrangements reflect - and determine – the location of power in Britain. The government has worked radically to transform those arrangements to break up traditional centres of power and make those who hold power on behalf of others more accountable for their actions.
But underlying this programme of reform has been a continuing commitment to the representative concept of democracy – whereby citizens periodically vote for representatives to make laws on their behalf – which defines the British form of parliamentary democracy, as it has developed over the past 200 years.
Yet some now argue that this approach is out of date, and that we should move towards a new system of ‘direct democracy’.
What was the impact?
Before we get into that bigger debate, I want to assess the impact of constitutional reforms which have been implemented in recent years, because the effect of those changes is pertinent to the debate about what future actions may be necessary.
Let me begin with Parliament. It has long been a criticism of our constitution that the executive dominates the legislature. The particular charge against the current government is that Parliament has been positively emasculated. This is, however, not the case. We have introduced extensive reforms that have strengthened Parliament.
On the Commons we have seen:
- the introduction of Westminster Hall as a secondary chamber for MPs to scrutinise government and hold debates
- great strengthening of the role of select committees
- the Prime Minister’s bi-annual appearance before the Liaison Committee
- parliamentary votes on military action against Iraq which set a clear precedent for the future
- the introduction of topical parliamentary questions and reduced notice for tabling of oral Parliamentary Questions
- a great increase in the day-to-day supervision of the government through written parliamentary questions, reinforced by the powers to MPs and citizens alike in the Freedom of Information Act
- extensive pre-legislative scrutiny and draft bills
- new public bill committees that enable expert witnesses to give evidence on bills.
The last of these measures is said by Professor Philip Cowley to have ‘the potential to do more to improve the quality of the parliamentary scrutiny of bills than any other Commons reform in the last twenty years’. But as things stand I can say categorically that the scrutiny of government today is far more substantial than it was when I first worked as a special adviser in the 1970s.
Hence, Michael Ryle, a former Clerk of the Committees of the House, has commented that ‘simple factual comparison with the 1950s and early 1960s shows that Parliament – particularly the House of Commons – plays a more active, independent and influential role in Britain today than at any time for many years’. Ryle also pointed to the near absence in that alleged ‘golden age’ of almost any rebellions by government backbenchers. This is the sharpest contrast to experience over the last decade where, as Professor Cowley and Mark Stuart have pointed out, the Commons has become increasingly rebellious.
The one area to which critics can point with some justification is the stricter timetabling of bills. There was no golden age for scrutiny of legislation, let it be said. Contentious bills were routinely ‘guillotined’. But I accept that there was generally more time at Report Stages and for committees on the floor of the House, and I hope that Tony Wright’s committee will address this, with corresponding greater opportunities for backbenchers.
Since the removal of the majority of hereditary peers, the Lords has also become a much more active, independent and assertive chamber, defeating the government on average 50 times per year. Indeed Lords reform is arguably the single most important change over the past decade in terms of strengthening Parliament vis-à-vis the executive.
Provisions in the Constitutional Reform and Governance Bill continue the process of reforming the Lords for the better, and the ultimate end of a wholly or substantially elected second chamber is now closer than it has ever been.
Overall, then, there has been a shift of power from government towards Parliament. And more widely, devolution has transferred some power out of Westminster and Whitehall altogether – to positive effect.
Political debate in Scotland, Wales and London has been energised and policy-making improved by the creation of the new political structures, while the new Stormont Assembly has been integral to the progress made in Northern Ireland. And the use of new voting systems for elections to the devolved bodies is having its own impact, facilitating the multi-party politics that is now a marked feature of modern Britain.
Alongside devolution, the Freedom of Information Act has strengthened the ability of individuals to hold those in political power to account, supported by an independent Information Commissioner with the authority to investigate and override refusals to release information. If anyone previously held doubts about the impact of Freedom of Information, the experience of revelations over MPs expenses should have removed them.
Like Freedom of Information, the Human Rights Act is another key achievement of this government, and I am proud to have been the Minister responsible for it. Passed in 1998, it placed the fundamental rights of the individual against the state at the heart of our domestic law.
The Act brought rights home by incorporating into UK law freedoms contained within the European Convention on Human Rights, a document which British lawyers had helped to draft in the aftermath of the Second World War. As a result, it has decisively changed the culture of government, as well as the way in which in which public officials formulate policy, take decisions and determine procedures.
If Parliament passes law that judges deem to be at odds with HRA, they can issue a ‘declaration of incompatibility’. That statement has no direct legal effect because we were clear that in setting its architecture the power to strike down any Act of Parliament had to rest with Parliament and not the courts.
Nonetheless, for Professor Bogdanor, the Human Rights Act is the cornerstone of a ‘new constitution’. He describes it as ‘a compromise between two doctrines; the sovereignty of Parliament and the rule of law. But the compromise, for its effectiveness, depends upon a sense of restraint on the part of both the judges and of Parliament’.
Yet Bogdanor believes that restraint is not being shown and that a more interventionist judiciary is provoking conflicts that will ultimately kill of the Diceyan concept of parliamentary sovereignty.
This brings us neatly on to the question of whether the government really has created a new constitutional settlement and, more generally, whether the changes of the past twelve years are now irreversible.
I do not subscribe to the view that parliamentary sovereignty has been undermined by the Human Rights Act. And nor do I see evidence of growing conflict with the judiciary.
As the Court of Appeal judge, Lord Justice Sedley, has written, ‘The reality is that, without taking the last word away from Parliament, the Human Rights Act has given the courts a voice in determining the compatibility of legislation with the convention, and Parliament and government have had the wisdom to heed the courts’ advice on the relatively few occasions when it has been negative.’
However, I do accept that even though Parliament remains at its summit, the overall constitutional landscape has been altered, probably for good. The changes we have seen are likely not to be reversed. It is the counterfactual which tells us that truth.
It would be hard to conceive, for example, of devolution being reversed. Freedom of Information is now here to stay. Hereditary peers won’t be making a return. The Bank of England will retain its independence. Reforms to strengthen the Commons could be extended but certainly won’t be rolled back. And, whatever the arguments preceding its creation, the Supreme Court will be a fixture in our constitutional architecture for a very long time. No party is going to put our senior court back into the legislature.
So whether or not one agrees with the entirety of the Bogdanor thesis, the government has enacted a number of constitutional changes that are now settled...
[Political content] ...
Where are we going next?
If all these measures are now here to stay, what future constitutional changes can we expect?
One possible reform is a Bill of Rights and Responsibilities that builds on the Human Rights Act. Back in 1998 I described the HRA as ‘a floor and not a ceiling’. It guarantees civil rights but does not cover social and economic rights which have developed since the Second World War. A Bill of Rights could extend into that area. It could also ensure that the limits of rights are properly understood by articulating more explicitly the responsibilities that are implicit in the Human Rights Act. So the government is now consulting on the merits of a Bill of Rights and Responsibilities, which would help to articulate the relationship between individuals and between the state and the citizen.
Alongside the codification of individual rights, there is a growing debate on the desirability of codifying the constitution. Britain has a famously unwritten, or more accurately uncodified, constitution. Many argue that the time has come to draw together in a single text the various constitutional authorities upon which we rely. I am on the record in saying that written constitution is ultimately desirable. However, this would take time, it would need to be done on a consensual basis and would in my view require a referendum. It would also, I believe, need to guarantee parliamentary sovereignty. Achieving all that is no easy task but I think it is the logical endpoint of the constitutional journey we are on.
One area where we might expect reform sooner is in relation to the electoral system. I am not going to shock anyone tonight by coming out as a supporter of proportional representation for elections to the House of Commons. But I am not opposed to that electoral system in all circumstances. Far from it.
I believe Proportional Representation would be the right method of election to a reformed House of Lords, which would perform a different function to the Commons and where the constituency link would not be a factor.
And as Home Secretary I passed the Bill to change our system for electing members of the European Parliament from First-Past-The-Post to regional list Proportional Representation. This made sense because the European Parliament is a representative body which emphatically does not sustain a government. And of course in all the new devolved bodies that have been set up, electoral systems other than First-Past-The-Post have been used.
But entirely different considerations apply to elections to the House of Commons, where the constituency link is vital and the victor forms a government. Those who seek PR for Westminster insinuate that a result where seats are proportional to votes cast will also produce a result where power is proportional to both votes and seats. This is the central flaw in the PR argument. In any democracy that is a logical impossibility, for by whatever system the electoral winner is determined, the winner – which forms a government – necessarily gains much more power than those who end up in opposition.
In truth PR allows weak governments with limited mandates to hold on to power for decades and takes away the fundamental power of ordinary people to remove them. Even apart from that, experience shows that countries with PR systems are much more likely to have unstable minority governments where small third and fourth parties dictate terms – which can lead to a tyranny of the minority.
Far from being a panacea for all ills – as it is so often portrayed – I am convinced that PR for the Commons would undermine our democracy, the effectiveness of our government and the relationship between electors and elected.
Having said that, although I do not believe a proportional system is appropriate for elections to the Commons, I think there are two factors that mean the time has come to move away from First-Past-The-Post.
The first is the fact of multi-party politics. The two-party system of the 1950s is gone for good and the electoral system needs to react to that. The second is crisis of trust in politics following the expenses scandal. We need an electoral system that secures legitimacy for the public. I have in principle long supported the Alternative Vote, by which voters rank candidates in order of preference, and now believe we need to actively move to it.
Crucially the Alternative Vote would enable us to retain the single Member constituency link, which is one of the central merits of the current system – both because it delivers effective representation and allows MPs to be held directly to account. But AV would also ensure that every MP is elected with the support of over half of the voters in their constituency. In an age of multi-party politics, it could both enhance the legitimacy of MPs and enable the public to express a greater range of preferences.
But as with any constitutional change of this magnitude, it could only be made with the endorsement of the electorate. So – as the Prime Minister indicated in his Party Conference speech in September – a referendum on the electoral system will be held early in the next Parliament to let the people decide whether they want to move to the Alternative Vote.
Conclusion: ‘popular sovereignty’ and public participation
The final area where we are likely to see constitutional change, and indeed where we are already seeing change, is in respect of new opportunities for direct engagement of the public in the political process. This is a necessary and desirable response to changes in politics and society.
The world in which we live is markedly different from that in which I grew up in the 1950s and early 60s, when voter turnout was at its zenith and the two main political parties each boasted six-figure memberships.
Deference has declined, traditional class cleavages have blurred and old allegiances have been eroded. Our society has become more diverse and fluid, and advances in technology have transformed the way we access information and communicate with each other. The days when the man in Whitehall knew best, or when politicians could govern largely unchecked outside elections, are over.
In the age of the internet and 24-hour media politicians are more accessible and under much greater scrutiny than ever before.
Yet in spite of all this, maybe in part because of it, the public has become less trusting and engaged in the political process.
And this trend is not unique to Britain. Similar problems are afflicting most liberal democracies.
Underlying social trends have, in my view, undermined public participation in the political process in two crucial respects.
First, the decline of deference and the rise of consumerism have eroded the sense that voting is a civic duty. Instead it is increasingly seen, especially by the young, as a right which may or may not be exercised.
Second, social changes have helped to bring about what political scientists call partisan dealignment. Whereas once people identified very strongly with a particular political party, and tended to stick with it for life, today party attachments are much weaker.
These two changes, more than any others, explain why voter turnout and party membership are down. So how should we respond?
Some say we need a further wave of reform to bring about the ‘popular constitutional state’ by transferring power from politicians to the people. Mechanisms proposed to bring about this change include: open primaries for political parties, proportional representation for elections to the Commons, and greater use of referendums and citizens’ assemblies.
I agree that citizens should be given more power. Within the Ministry of Justice I am actively pursuing measures to involve the public more directly in policy making and policy implementation.
For example, we are giving local people a say in what Community Payback projects offenders should be made to complete, what local projects criminal assets should be spent on, and what priorities their Neighbourhood Policing Team should tackle.
And we are currently using deliberative forums to get objective evidence about what people think of the idea of a Statement of Values, a Bill of Rights and Responsibilities and indeed a written constitution. These are pioneering actions and in time I think we will see greater use of these constitutional innovations by government.
I hope Parliament will do the same. In particular, I would like to see a better system for handling public petitions which could enable citizens to influence the parliamentary agenda by triggering debates or select committee inquiries.
But I think we need to be realistic about what can be achieved and recognise the problems we face in trying to create new mechanisms to stimulate political engagement.
I sought to progress parliamentary petitions as Commons Leader but was blocked in part on grounds of cost. Now I don’t think cost should be a showstopper in that case, but we do need to recognise that finance is a factor in this debate on political engagement.
Deliberative forums such as citizens’ juries or assemblies, for example, are a useful means of augmenting representative democracy. But they cannot be used routinely. Similarly it is difficult to envisage the universal use of mechanisms such as open primaries in the selection of party candidates. Who would pay the significant costs involved? The parties would not be able to afford it. And whilst increased state funding may be something that returns to the party funding agenda in future, I don’t detect much popular appetite for it at the moment.
Now I don’t mean this to be a counsel of despair. My own experience tells me there are simple, straightforward and very inexpensive ways to ensure that in practice people have more power. One measure is called, in New England, the ‘town meeting’. In Blackburn I call it the ‘residents’ meeting’. It provides an opportunity for citizens to talk about local issues with their local police chief, councillor, MP and so on – and to get action in response. This Friday I’ll be chairing the 62nd I’ve held, on a regular cycle around town, in six years. And I still do soapbox open air meetings. People turn up to both in numbers. They work.
Re-engagement is not a quick fix that can be achieved if only we hit upon the right structure. It requires a deeper cultural change and I believe that locally based grass roots initiatives are more likely to bring about a democratic renaissance than grand constitutional changes – as we can see from looking at experience abroad.
The introduction of proportional representation in New Zealand, for example, failed to halt a slow decline in election turnout, while Norway’s mammoth Study of Power and Democracy concluded that PR was among the causes of political disengagement in that country by failing to offer citizens the chance to make a clear change in government.
Evidence from the United States, meanwhile, lends weight to fears about dangers of routinely using plebiscites. In California, the process of holding ballots on the state budget has brought one of the richest and most powerful States in the Union to the brink of bankruptcy.
The New York Times recently reported that the Californian initiative ‘in which legislators or independent groups ask voters to mandate how the state’s money is spent or not spent — has become at times an exercise in fiscal self defeat, with voters moving to earmark money for one special program one year, only to contemplate undoing their own will a few elections later.’ The entire system has been plunged into crisis and the state is almost ungovernable.
This leads to my final point, which is to caution against going too far with ‘direct democracy’. I agree that existing political structures need to allow more direct public involvement in the decision making process. But it would be a serious mistake to simply hand decision-making power over to the body politic at large.
For one thing, as the Californian experience shows, direct democracy risks undermining stable government. But it paradoxically also risks distorting the democratic process by amplifying the voices of those already adept at making themselves heard, at the expense of the more socially marginalised groups.
Social surveys conducted by Ipsos MORI for the Hansard Society underline my concern that political participation is socially skewed – finding that older and wealthier people participate more than the young, the poor and those from particular ethnic minorities.
I am certainly not convinced that the creation of new and increased opportunities for participation will necessarily tackle that disjuncture. Indeed in all likelihood it will tend to make it more pronounced, as new avenues of engagement attract the already engaged more than the disengaged. So we need to beware that in our desire to tackle one democratic deficit we don’t create another.
Direct democracy mechanisms may make it easier for minorities to contribute to political debates, but at the same time they make it harder for them to influence political decisions – as more and more issues would be decided by majority votes. As a consequence, direct democracy – in its purest form – runs the risk of increasing voter apathy and disengagement among those citizens who are already marginalised. In so doing, it will increase political inequality, and with it inequality in other areas.
So let me conclude by nailing my colours firmly to the mast of representative democracy. I remain convinced that this offers the best means of balancing and accommodating competing interests and best ensures that the interests and rights of minorities are not lost to sight.
So when we evaluate the case for major constitutional reform in the future, our judgement should be based on the extent to which such changes support and enhance, rather than undermine, the representative system.