Constitutional Futures Revisited: Britain's Constitution to 2020

Constitutional Futures Revisited Britain’s Constitution to 2020 Edited by Robert Hazell Constitutional Futures Revis...

Author: Robert Hazell

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Constitutional Futures Revisited Britain’s Constitution to 2020

Edited by

Robert Hazell

Constitutional Futures Revisited

This page intentionally left blank

Constitutional Futures Revisited Britain’s Constitution to 2020 Edited by

Robert Hazell CBE Professor of Government and the Constitution University College London, UK

Editorial matter, selection and conclusion © Robert Hazell 2008 All remaining chapters © respective authors 2008 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6-10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2008 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN-13: 978–0–230–22074–4 hardback ISBN-10: 0–230–22074–6 hardback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Constitutional futures revisited : Britain’s Constitution to 2020 / edited by Robert Hazell. p. cm. Includes bibliographical references and index. ISBN 978–0–230–22074–4 (alk. paper) 1. Constitutional law—Great Britain. I. Hazell, Robert. KD3989.C6587 2008 342.4102—dc22 2008029945 10 9 8 7 6 5 4 3 2 1 17 16 15 14 13 12 11 10 09 08 Printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne

Contents

List of Figures

x

Preface

xii

List of Abbreviations

xiv

Notes on Contributors

xvi

1 Introduction: Forecasting Constitutional Futures Introduction The constitution in flux The reform programmes of the parties The unfinished business of constitutional reform The main forecasts made in Constitutional Futures in 1998 Forecasting techniques Constitutional scenarios The four constitutional scenarios Dispersed Constitutionalism the most likely future scenario Structure of the book Appendix Future studies and forecasting techniques Notes

1 1 1 3 4 6 10 11 16 18 19 19 19 25

Part I: The Decentralised State 2 Scotland and Wales: The Evolution of Devolution Introduction The drivers of constitution-making in Scotland and Wales Outcomes Conclusion Notes

29 29 31 36 42 42

3 Tying the UK Together? Intergovernmental Relations and the Financial Constitution of the UK Introduction Starting points Financial arrangements in decentralised states Territorial constitutional futures for the United Kingdom Restructuring the intergovernmental finance system

43 43 44 47 49 51

v

vi

Contents

Outcomes Conclusion: Britain’s devolved constitutional futures Notes

53 54 55

4 Northern Ireland: Polarisation or Normalisation? Recent trends Drivers of change Constraints on change The matrix The scenarios Comparative evidence Conclusions Notes

56 56 58 62 64 67 69 71 72

5 Answering the English Question What is the English question? Answers to the English Question: The options The future of devolution for or in England Conclusions Notes

73 73 74 80 88 89

6 The Future of Britishness Scenario axes: Identifying the ‘steady state’ Union Devolution as a modification of ‘steady state’ Union The end of Britishness: The future as separation The new Britishness: The future as adaptation Conclusion

90 91 93 94 99 104

Part II: The Central State 7 The Judiciary Drivers of change Possible future scenarios ‘Back to the Future’: Political constitution and consensual decision-making ‘Dialogue of the Deaf’: Political constitution and unilateral decision-making ‘A problem shared is a problem halved’: Legal constitution and consensual decision-making ‘Judges on Top’: Legal constitution and unilateral decision-making Conclusions: The relative likelihood of the scenarios

109 109 114

8 Whitehall Drivers of change Countervailing drivers

123 124 131

116 117 118 119 122

Contents

Scenarios Not going to happen Conclusion Notes 9 The Future of the Monarchy: The Reign of King Charles III Working assumptions The present position Drivers of change Turning points Scenarios Conclusion Notes

vii

132 137 137 138 139 139 140 143 150 153 154 155

Part III: New Forms of Accountability 10 The New Human Rights Culture Introduction Drivers of change The axes of change Possible outcomes Final predictions Notes

159 159 162 170 172 175 176

11 Downward Slope? FOI and Access to Government Information Introduction Drivers toward greater access to information Drivers toward less access to information Axes Scenarios Conclusion Notes

178 178 180 184 187 191 195 196

12 Watchdogs of the Constitution – the Biters Bit? Introductory Issues and trends Drivers of change Scenarios Wider impact Conclusion Notes

197 197 199 202 205 211 212 214

13 Media Pressures on Politics Drivers of change Main constraints on change

215 215 223

viii Contents

Likely future changes Matrix and four scenarios Conclusions

225 226 230

Part IV: Representation 14 Majoritarianism under Pressure: The Electoral and Party Systems Introduction The gradual decline of the British electoral system Initiating and enacting reform Parliamentary obstacles to electoral reform What electoral system might be chosen? Majoritarian futures? Conclusion Acknowledgements Notes

233 233 234 237 238 239 242 247 248 248

15 Whither the Parties? Introduction Recent trends Main issues in the next ten years Drivers of change Main constraints on change Four scenarios How plausible are each of these scenarios? Conclusions Notes

249 249 249 252 253 256 256 264 265 266

16 Parliament: Emasculated or Emancipated? Context Drivers of change Constraints on change Matrix Plausibility of the four scenarios Conclusions Notes

267 267 269 272 273 274 283 284

17 Conclusion: Where Will the Westminster Model End up? Introduction Continuing dynamism of constitutional reform More tightly constrained UK executive Further big constitutional changes unlikely Devolution will loosen but not break the bonds of the United Kingdom More assertive Parliament and judiciary

285 285 285 287 287 289 290

Contents

Delegation to independent bodies to restore trust in politics Where will the Westminster Model end up? Westminster Unchanged Westminster Devolved Westminster Constitutionalised Westminster Transformed Which scenarios are most likely? How majoritarian will the Westminster Model be in future?

ix

291 293 295 296 296 297 297 298

Table of Cases

301

Table of Legislation

302

Bibliography

303

Index

326

List of Figures

1.1 The 1998 predictions: Minimal and maximal scenarios for constitutional reform 1.2 Themes from the first Constitutional Futures 1.3 Constitutional drivers by theme 1.4 Concentration versus dispersal of power 1.5 Political versus legal constitution 1.6 Overarching constitutional scenarios 1.7 The matrix approach to scenario planning 1.8 Lijphart’s executive-parties dimension 1.9 Lijphart’s federal-unitary dimension 2.1 Some statistical indicators about differences across the United Kingdom 2.2 Centralising/decentralising dynamics in Scotland and Wales 3.1 The UK before devolution 3.2 Instruments for financial allocation in federal systems 3.3 Centralising/decentralising dynamics in regional and federal systems 4.1 Northern Ireland Assembly election results for the four major parties 4.2 Shootings and bombings 1995–2007 4.3 Matrix: Four scenarios for Northern Ireland 5.1 Summary of potential answers to the English Question 5.2 Support for an English Parliament/elected regional government 5.3 Possible changes at Westminster 5.4 Future sub-national scenarios 6.1 Imaginable constitutional options for the United Kingdom 6.2 Location of the ‘steady state’ 6.3 Marginal shift in placement of Britishness 6.4 Dynamic of key steps to separation 2007–2020 6.5 Shape of key steps to separation 2007–2020 6.6 Dynamic of key elements of adjustment 2007–2020 6.7 Shape of the ‘New Britishness’ 7.1 Possible developments of the judicial role 7.2 ‘Back to the Future’: Illustrative narrative 7.3 ‘Dialogue of the Deaf’: Illustrative narrative 7.4 ‘A problem shared is a problem halved’: Illustrative narrative 7.5 ‘Judges on Top’: Illustrative narrative x

6 9 11 13 15 16 23 24 24 35 37 44 49 50 60 61 65 75 77 81 83 92 92 93 99 99 103 104 114 116 118 119 120

List of Figures

8.1 8.2 8.3 9.1 9.2 10.1 10.2 10.3 10.4 10.5 10.6 10.7 10.8 11.1 11.2 11.3 11.4 11.5 11.6 11.7 11.8 11.9 12.1 12.2 12.3 12.4 13.1 13.2 13.3 14.1 14.2 14.3 14.4 14.5 15.1 15.2 15.3 15.4 16.1 16.2 17.1

The civil service: Scenarios and direction of travel Defining the Whitehall model Ministers and civil servants: A solution from Australia Another abdication? Second-in-line and a Catholic fiancée How the Human Rights Act 1998 works Defining a ‘human rights culture’ The stance of the UK’s major political parties towards a ‘British Bill of Rights’ in April 2008 Possible shapes of a UK rights culture ‘Grumbling Acquiescence’ in legal cosmopolitanism The ‘Nuclear Scenario’ ‘Back to the Future’ ‘The Fruit of the Native Soil’ Key points of the UK FOI Act Number of requests from first year of implementation Abortive attempt to reduce the scope of the Act: the Maclean Bill Potential changes toward more liberal access Potential changes toward less liberal access Access to information under a political or legal constitution Enabling access to government information: Some examples Australia: How to erode FOI by stealth Future Access-to-Information scenarios Current constitutional watchdogs A case study – the Electoral Commission Ethics and standards: Key PASC recommendations Fantasy or reality: One election, many watchdogs? Blair’s five problems with the media Politics and the new media Democracy and media: Four-way matrix Elimination of the Liberals? Third-party seats Effective numbers of parties in votes, seats, legislative power and cabinet power Constitutional futures: the electoral and party systems Two likely scenarios for the electoral and party systems Mean number of party members per constituency, 1992–2005 Trends in traditional campaigning Recommendations of the Phillips review Four scenarios for political parties Four scenarios for parliamentary evolution Possible future developments Magnification of Dispersed Constitutionalism scenario

xi

124 125 137 142 147 160 162 167 171 173 174 175 175 179 181 181 185 188 190 190 192 194 198 201 203 208 219 220 227 234 235 243 245 246 250 250 252 257 273 283 294

Preface

The Constitution Unit has primarily made its name for detailed studies of individual reforms: devolution in Scotland and Wales, reform of the House of Lords, introducing freedom of information (FOI), changing the electoral system. But from time to time we spread our wings to survey the whole. We first did so ten years ago, when we produced Constitutional Futures: A History of the Next Ten Years. In that book we surveyed the Labour government’s reform programme as a whole, and tried to forecast the cumulative impact of all the reforms introduced in the government’s first year in office. Ten years on, in Labour’s third term, is a good time to produce a new set of forecasts. The pace of constitutional change has not slackened. After the first big wave of reforms in Blair’s first term came a second wave with the Constitutional Reform Act of 2005, and now a third wave under Gordon Brown, with more reforms to come. So it is timely to review our earlier forecasts and produce a fresh set, forecasting how the political and legal landscape will evolve between now and 2020 in the light of the successive waves of constitutional reform unleashed so far. This is a completely new book, with a new approach and a new set of authors. The new approach is that we have systematically used futures methodology and forecasting techniques throughout the book. To help understand the methodology all the contributors were taken to Burwalls in Bristol for a weekend of induction and collective brainstorming. We are grateful to Robert Rae (Scottish Futures Forum) for joining us there to advise about forecasting techniques, and also to Prof Kees van der Heijden (Centre for Scenario Planning and Future Studies, University of Strathclyde), and Andrew Jackson (formerly Director of Science in Government) for further advice. Other experts who came to Burwalls or have kindly advised on subsequent drafts include Prof Robert Blackburn (KCL), Prof Vernon Bogdanor (Oxford), David Crawley (ex Scotland Office), Prof Brian Galligan (Melbourne), Graham Gee (Oxford), Andrew McDonald (Cabinet Office), Judith Simpson (Ministry of Justice), and Akash Paun and Brian Walker (Constitution Unit). In the Constitution Unit special thanks go to Mark Glover, who has taken the lead in training us in futures methodology, and has edited and put together the book with his usual calmness, speed and efficiency. The interns who have helped are Greg Dale, René Holbach, Tommaso Giordani, Sarah Renfrew and Daniel Lawrence. I should also thank Vicki Spence, our administrator, who has managed the finances and organised the meetings, and Amy Lankester-Owen, our commissioning editor at Palgrave. xii

Preface

xiii

Finally, we owe a special debt of gratitude to the Nuffield Foundation, who made a generous grant to this project, and to Sharon Witherspoon there who has shown great interest in the project as it developed. Robert Hazell School of Public Policy, University College London 1 July 2008

List of Abbreviations

AAT – Administrative Appeals Tribunal (Australia) AMS – Additional Member System AV – Alternative Vote BIC – British–Irish Council BoRaD – Bill of Rights and Duties C&AG – Comptroller and Auditor General CAIRS – Co-ordination of Access to Information Requests Systems CASC – Constitutional Affairs Select Committee (now Justice Committee) CO – Cabinet Office CRA – Constitutional Reform Act 2005 CSPL – Committee on Standards in Public Life DCA – Department for Constitutional Affairs DCLG – Department for Communities and Local Government DPA – Data Protection Act DUP – Democratic Unionist Party ECHR – European Convention on Human Rights EDM – Early Day Motion EDRMS – Electronic Documents and Records Management System EHRC – Equality and Human Rights Commission EO – Executive Order ERA – Elected Regional Assembly FOI – Freedom of Information FOIA – Freedom of Information Act FPTP – First-past-the-post GOs – Government Offices for the regions HMRC – Her Majesty’s Revenue and Customs HRA – Human Rights Act 1998 ICO – Information Commissioner’s Office ICTs – Information and Communication Technologies IGR – Intergovernmental Relations IRA – Irish Republican Army JAC – Judicial Appointments Commission JCHR – Joint Committee on Human Rights JMC – Joint Ministerial Committee JSC – Justice Select Committee LCJ – Lord Chief Justice MLA – Member of the Legislative Assembly MMP – Mixed Member Proportional xiv

List of Abbreviations xv

MoJ – Ministry of Justice NAO – National Audit Office NATO – North Atlantic Treaty Organisation NDPB – Non-Departmental Public Body NGOs – Non-Governmental Organisations NSMC – North/South Ministerial Council ONS – Office for National Statistics OPSI – Office of Public Sector Information PASC – Public Administration Select Committee PCA – Parliamentary Commissioner for Administration (Parliamentary Ombudsman) PFI – Private Finance Initiative PPERA – Political Parties Elections and Referendum Act PQs – Parliamentary Questions RAE – Research Assessment Exercise RDA – Regional Development Agency SDLP – Social Democratic and Labour Party SF – Sinn Féin SIC – Scottish Information Commissioner SMP – Single Member Plurality SNP – Scottish National Party SNR – Sub-national economic development and Regeneration review (Treasury 2007) STV – Single Transferable Vote TEU – Treaty on the European Union (Maastricht Treaty) TNA – The National Archives UKIP – United Kingdom Independence Party UUP – Ulster Unionist Party


Arthur Aughey is Senior Lecturer in politics at the University of Ulster, where his research includes work on Northern Ireland’s politics with special reference to unionism, British politics with special reference to the politics of the constitution, and Conservative political thought. His recent publications include Nationalism, Devolution and the Challenge to the United Kingdom State. Adrian Blau is Lecturer in Governance and Policy Analysis at the University of Manchester (Politics, School of Social Sciences). He works on elections and democratic theory, and has published articles in Electoral Studies and Party Politics. Martin Burch is Professor of Government at the University of Manchester and co-leader of the English Regions Devolution Monitoring Programme at the Constitution Unit, University College London. He has been involved in international projects on executive government (across Western Europe), regionalism in Europe, party politics and executive control, Europeanisation as a concept, and policy change and historical institutionalism. Justin Fisher is Senior Lecturer in Political Science and Head of Politics and History at Brunel University. He works in the areas of elections, parties, constitutional reform and British and comparative politics more generally. His recent publications include a study of the last election on behalf of the Electoral Commission, analysing the campaign at both national and local levels. Oonagh Gay is head of the Parliament and Constitution Centre at the House of Commons Library, a member of the Study of Parliament Group, and a Council member of the Hansard Society. She was seconded to the Constitution Unit, at University College London during 2002–2003 as a Senior Research Fellow, and since 1992 has advised Members of Parliament on the subject of parliamentary accountability as part of the Commons Research Service. Mark Glover is a research assistant at the Constitution Unit, which he joined in January 2006 after obtaining an MA in European Society at University College London. He mainly works for the FOI/DP team carrying out an ESRCfunded evaluation of the impact of Freedom of Information. xvi

Notes on Contributors xvii

Scott L. Greer is Assistant Professor of Health Management and Policy at the University of Michigan and Honorary Senior Research Fellow of the Constitution Unit, University College London. A political scientist, he is the author of books and articles about health policy, devolution and the European Union; his latest book is the edited volume Devolution and Social Citizenship Rights in the United Kingdom. Alan Harding is Professor of Urban and Regional Governance and Director of the Institute for Political and Economic Governance at the University of Manchester. He is a recognised expert in local and regional governance, particularly in relation to economic development and regeneration, in the United Kingdom, elsewhere in Europe and in North America. He is also coleader of the devolution monitoring programme for the English regions at the Constitution Unit, University College London. Robert Hazell is Professor of Government and the Constitution at University College London and Director of the Constitution Unit in UCL’s School of Public Policy. Originally a barrister, he was a senior civil servant in the Home Office before becoming Director of the Nuffield Foundation, and then founding the Constitution Unit in 1995. Sarah Holsen is studying for a PhD at the Swiss Graduate School of Public Administration in Lausanne, Switzerland. Previously she was the FOI Research Fellow at the Constitution Unit, which she joined in July 2004 after completing an MPA at the Maxwell School of Syracuse University. Andrew Le Sueur is Professor of Public Law at Queen Mary, University of London and is editor of Public Law. Since January 2006 he has been legal adviser to the House of Lords Constitution Committee. Over the past few years much of his research work has been on top-level courts and the proposals to create a new Supreme Court for the United Kingdom. His other main research interest is judicial review. Kate Malleson is Professor of Law at Queen Mary, University of London. In 2003–2005 she was a specialist adviser to the House of Commons Constitutional Affairs Select Committee’s review of the provisions of the Constitutional Reform Bill. She is the author of a wide range of publications on the judiciary and the legal system and has been a member of the government Joint Working Party on Equal Opportunities in Judicial Appointment and Silk as well as a member of the Fawcett Commission on Women in the Justice System. Bob Morris is an Honorary Senior Research Fellow at the Constitution Unit and a former Home Office official. There he had spells, amongst other

xviii


things, as the Principal Private Secretary and head of the Criminal Justice and Constitutional Department. Colm O’Cinneide is Senior Lecturer in Law at University College London and since 2007 has been a Specialist Legal Adviser to the Joint Select Committee on Human Rights. He previously worked as Legal Officer to Lord Lester of Herne Hill QC (1999–2001), providing legal advice to parliamentarians, Non-Governmental Organisations (NGOs) and the media on domestic and international human rights law, discrimination law and public policy. James Rees is a Research Associate at the Institute for Political and Economic Governance at the University of Manchester. He also works on the Constitution Unit’s English Regions devolution monitoring project, led by Profs Harding and Burch, as well as a project on the Voluntary and Community Sector for the North West Improvement Network. Peter Riddell is Chief Political Commentator of the Times, and author of six books on British politics, including one on Parliament and another on political careers. He won the Channel Four Political Book of the Year award for his 2003 book ‘Hug Them Close – Blair, Clinton, Bush and the “special relationship”’. He is chairman of the Hansard Society, holds two honorary doctorates and is an Honorary Fellow of Sidney Sussex College, Cambridge. Meg Russell is Senior Research Fellow at the Constitution Unit, University College London. She is the author of various reports and briefings on Parliament and its reform, including Reforming the House of Lords: Lessons from Overseas and Building New Labour: The Politics of Party Organisation. She was seconded full time as an adviser to Robin Cook in his role as leader of the House of Commons, June 2001–March 2003. Alan Trench is Research Fellow in the School of Law at Edinburgh University, and was formerly at the Constitution Unit at University College London. He has written widely on devolution in the United Kingdom, particularly on intergovernmental relations and institutional issues, as well as comparatively. Rick Wilford is Professor of Politics at Queen’s University, Belfast and an Honorary Senior Research Fellow of the Constitution Unit, University College London. He is co-leader, with Robin Wilson, of the Northern Ireland Devolution Monitoring Programme team and author of numerous articles and books on Northern Ireland politics and devolution. Robin Wilson is director of the think tank Democratic Dialogue and an Honorary Senior Research Fellow of the Constitution Unit, University

Notes on Contributors xix

College London where he is co-leader of the Northern Ireland Devolution Monitoring Programme. He is a member of the board of the Institute of Governance at Queen’s University, Belfast and of the advisory council of the think tank TASC. He also chairs the policy committee of the Northern Ireland Community Relations Council and is an adviser to the Council of Europe Project on intercultural dialogue and conflict prevention. Barry K. Winetrobe was formerly Reader in Law at Napier University, and is now a consultant. He has written widely on constitutional and parliamentary issues; co-authored, with Oonagh Gay, a report on parliamentary watchdogs in 2003; and was a special adviser to the recent House of Commons Public Administration Committee inquiry on Ethics and Standards.


1 Introduction: Forecasting Constitutional Futures Mark Glover and Robert Hazell

Introduction This is a book with a difference. It is different in three respects. It is the first study of constitutional change which has systematically used futures methodology and forecasting techniques in combination with political and legal theories. These techniques are still controversial and seldom used by academics. We have found the techniques provide a disciplined but creative framework, which has proved intellectually stretching, and we hope the reader does so too. We also hope that it may encourage other academics to use futures methods in appropriate contexts. We explain our methodology and use of forecasting techniques at the end of this chapter. Risk and uncertainty is inherent in any predictive exercise, but this does not mean it is not worth doing. We believe that the framework supplied by futures techniques has helped us to focus on what is really driving or constraining change, to think through the interactions between the different forces and to present clearly organised and instructive scenarios up to the year 2020. The second and third differences of the book can be more briefly stated. The book is genuinely multi-disciplinary, with contributions by lawyers, political scientists and former public servants. And it was written as a genuine collaboration, with a lot of mutual learning as we got to grips with the details of forecasting techniques and the substance of each other’s chapters. The aim throughout has been to produce a book which is greater than the sum of its parts in its explanatory power and in terms of the overall conclusions about the future of the British constitution in a time of great change.

The constitution in flux The UK is going through a period of quite extraordinary constitutional change. In the space of ten years the Westminster Model, formerly held up as the ideal type of unfettered majoritarian government, has seen the 1

2 Introduction: Forecasting Constitutional Futures

introduction of a whole series of new checks and balances to reduce the power and discretion of the executive. Devolution, the Human Rights Act (HRA), Lords reform, proportional voting systems, freedom of information (FOI), a new Supreme Court and an array of new constitutional watchdogs have transformed the Westminster constitution. European Union law, meanwhile, is reshaping the political and institutional context of the UK. Some of the changes to the constitution have been described as the biggest since the Great Reform Act of 1832 and the subsequent grant of universal adult suffrage (for example Bogdanor 1999: 55). The changes have been introduced piecemeal, and they have mainly been written about and analysed in a piecemeal way. An early exception to that was the Constitution Unit’s 1999 book Constitutional Futures, which was the first attempt to view the New Labour government’s constitutional reform programme as a whole and to forecast the cumulative impact of all the different constitutional changes. (Subsequent books about the whole constitutional reform programme include Evans 2003; Foley 1999; Forman 2002; Johnson 2004; King 2001; King 2007; Morrison 2001; and Oliver 2003.) Constitutional Futures was written in the first year of Tony Blair’s first term. Ten years on, at the beginning of Gordon Brown’s premiership, is a good time to review where we are and make a further set of forecasts. Even without further changes the British constitution is very different from what it was in 1997. But further changes are inevitable. There are many items of unfinished business, and further reforms may come from a Conservative government under David Cameron as well as from the Labour government under Gordon Brown. Even the changes to date contain a continuing dynamism of their own. The only thing that is certain is that the British constitution is not going to stop changing. The most commonly asked question is where these changes are taking us. Sometimes the question is asked in fear and apprehension; sometimes with expectation and excitement. That is the main reason for looking into the future: to give politicians, parliamentarians, judges and the media a better sense of the direction of travel, the steps on the way and the range of possible destinations. Will devolution lead to Scottish independence and the break up of the UK? Will a British bill of rights lead to yet more power for the judges? Will the introduction of proportional voting systems in Scotland, Wales, Northern Ireland and the European Parliament lead eventually to electoral reform at Westminster? And will this mean more power for Parliament, or less? Even ten years on the British public and its politicians remain reluctant to view the constitution in the round. This is partly because the Blair government was reluctant to provide any overall narrative and partly because it was hesitant over many of the changes, so that its actions appeared sometimes contradictory. Britain has become more decentralised, but the central executive retains very significant power. The constitution has become

Mark Glover and Robert Hazell 3

more formalised and legalised, but politicians continue to resist a greater role for the judges. Parliament is becoming more assertive, especially in the second chamber, but the House of Lords remains unelected. Checks and balances on the executive are therefore increasing but continue to be contested. Citizen power has increased, through referendums and FOI, but voter turnout at elections and membership of political parties continue to decline. The next ten years will be crucial to the bedding in of the new constitutional settlement and the changing relations between the three branches of government. Much remains in flux, which means that several different futures could lie ahead. Depending on the paths we take, Britain could end up as a decentralised and judicialised state, far away from the Old Westminster Model. Or traditional British caution and suspicion of excessive legalism means that we could settle on something in between. Much depends on the changing relationships between parts of the constitution outside the direct control of politicians. Parliament may not live up to the challenges presented to it by the Brown government. Amongst the judiciary the pendulum may swing away from activism and back towards greater deference towards the elected branches of government. The task we have set ourselves in this book is to make the best informed forecasts we can about all the different pieces and players in the constitution, and then connect all the moving parts to give a dynamic sense of the whole.

The reform programmes of the parties Gordon Brown has promised a bold new programme, starting with strengthening Parliament and reforming the prerogative powers, and possibly ending with a British bill of rights and even a written constitution (Brown 2007a; Ministry of Justice 2007c). The main measures to strengthen Parliament include giving it a greater say over going to war, over its own dissolution and recall, over senior public appointments and over the ratification of treaties, and greater oversight of the intelligence services. The prerogative powers will be curtailed by introducing a statutory framework for the regulation of the civil service, the issue of passports and the grant of pardons and by dropping any effective role in the selection of bishops, and possibly of judges, but with no sign of further curtailing the Prime Minister’s role in the appointment of peers. On a bill of rights and a written constitution, the Brown government promised to lead a dialogue within Parliament and with people across the UK in a series of public hearings, to develop first a statement of values which define British citizenship, and then to consider whether we should go further still than this statement of values to codify either in concordats or in a single document both the duties and rights of citizens and the balance of power between Government, Parliament and


the people. [ . . . ] [I]t is right to involve the public in a sustained debate whether there is a case for the United Kingdom developing a full British Bill of Rights and Duties, or for moving towards a written constitution (Brown 2007a). David Cameron has promised to scrap the Human Rights Act 1998 (HRA) and replace it with a British bill of rights, but with the understanding that Britain would still adhere to the European Convention on Human Rights (ECHR) (Cameron 2006). On devolution, he has undertaken (like his two predecessors) to introduce English votes on English laws: a procedural change which would have a dramatic impact on the drafting of legislation and the legislative process and which would create two or three different classes of MPs at Westminster. The Conservatives’ 2005 manifesto also contained a commitment to reducing the number of Scottish and Welsh MPs at Westminster and to reducing the total size of the House of Commons to 550 members. The Conservative Democracy Task Force, chaired by Ken Clarke, has seen most of the proposals in its first report, An End to Sofa Government (Conservative Democracy Task Force 2007a), already adopted by Gordon Brown as the new Prime Minister. In his July 2007 statement to Parliament on constitutional reform, Brown also adopted many of the proposals in the Task Force’s second report, Rebuilding Parliament (Brown 2007a). But in other respects Ken Clarke would go further in extending Parliament’s powers and autonomy: by introducing a Business Committee to set the Commons agenda, reducing government’s control of the timetable; by allowing select committee chairmen to be elected by a secret ballot of the whole House, reducing the power of the whips; by enhancing the role for private member’s bills; and by enhancing the scrutiny of government finance, with select committees following up the work of the Public Accounts Committee (Conservative Democracy Task Force 2007b). More reports of the Democracy Task Force are still to come.

The unfinished business of constitutional reform But even without any new constitutional reforms, whether introduced by Labour or the Conservatives, the constitutional reform programme contains plenty of momentum simply from the pieces of unfinished business. The first wave of reforms released powerful political and legal forces still working their way through, which have given rise to second and third waves (Hazell 2007c). The initial reforms set in train a series of consequential changes, and there is a lot of dynamism still working its way through the system. The dynamism is particularly evident in devolution, in Wales, Scotland and London. It is at work in Parliament, in particular in the new House of Lords. It is also being driven by the changes flowing from the (HRA), greater separation of the judiciary and the new Supreme Court.


Devolution has plenty of unfinished business. In Wales, the government has finally acknowledged that the original model of devolution is not working, and the new Government of Wales Act 2006 proposes to grant the Assembly greater powers in three stages. The final leap in stage three would be made only after a referendum. In Scotland, the new Scottish National Party (SNP) government will press for further powers for the Scottish Parliament and greater fiscal autonomy. In London, the government is devolving more powers to the Greater London Authority. In the English regions ‘creeping regionalism’ continues, leaving growing questions about the democratic accountability of the new regional structures. Public support for an English Parliament has been flat, but may be moving upwards in response to the Conservative campaign for ‘English votes on English laws’. At Westminster the semi-reformed House of Lords is much more assertive, defeating the government on average 50 times per year, with many defeats resulting in significant policy concessions (Russell and Sciara 2007). The House of Commons voted in March 2007 for an all-elected House of Lords. The government had proposed 50:50 elected and appointed. Depending on size and relative proportions, elected members could reduce the independence and expertise of the appointed House. But they could also make the second chamber yet more assertive, and help to create even stronger bicameralism at Westminster. In the House of Commons the backbenchers are also becoming more assertive (Cowley 2005). A hung Parliament with coalition or minority government after a future election could herald a reshaping of executivelegislative relations. The Liberal Democrats will press for electoral reform as the price for their support, but it will not be introduced until one of the major parties perceives it to be in their interest. If proportional representation was introduced the Liberal Democrats could find themselves ensconced in a pivotal position in the House of Commons as well as the House of Lords. A Conservative government which introduced English votes on English laws could have equally dramatic effects: implemented to the full, it would create a parliament within a parliament (Hazell 2006c). The impact of the HRA has been as strong on the executive branch of government, and on the legislature, as it has been in the courts. The government clearly dislikes the constraints, but the review which Tony Blair initiated of the operation of the Act proposed little change (DCA 2006b). David Cameron has said he would replace it with a British Bill of Rights, which he would seek to entrench. If successful, this would tilt power strongly towards the judiciary. The growing judicialisation of politics, the Lord Chief Justice (LCJ) as the new head of the judiciary, and the new Supreme Court will also serve to give the judges a higher profile. This is likely to create new tensions between the executive, Parliament and the judiciary. These selected examples illustrate the continuing importance and dynamism of constitutional reform, but they fall into the familiar trap of


discussing the reforms item by item. What is different about the approach in this book is that we will set out (as we did in the original Constitutional Futures) to explore the interactions and interplay between the different constitutional changes and to assess their cumulative impact. We hope to do so in a more systematic way, borrowing from the foresight techniques developed in futures studies. But before we explain the forecasting methodology used in this book, it is worth revisiting the main forecasts made in the original Constitutional Futures, to see which were proved right, which were proved wrong, and why.

The main forecasts made in Constitutional Futures in 1998 Constitutional Futures was written in 1998, in the first year of the new Labour government. The central framework of the book posited two scenarios of how the constitutional reform programme might unfold over the next ten years, one minimal and the other maximal (see Figure 1.1).

Area

Minimal

Maximal

Devolution

Scottish Parliament with legislative power, not exercising its limited tax raising powers

Scottish Parliament exercising legislative and tax raising powers. Independent Scotland?

Northern Ireland Assembly with legislative but no tax raising power

Northern Ireland Assembly with legislative and tax raising powers

Welsh Assembly with secondary legislation making power only

Welsh Parliament with legislative and tax raising powers

Regional Development Agencies in England appointed by central government

Elected Regional Assemblies in some English regions; Regional Chambers elsewhere

Elected mayors in a few cities with limited powers

Strong elected mayors in the major cities

Joint Ministerial Committee (JMC) on Devolution meeting infrequently; firefighting only

JMC as strong part of devolution settlement

Council of the Isles as token consultative body

Council of the Isles developing wider functions

Figure 1.1 The 1998 predictions: Minimal and maximal scenarios for constitutional reform Source: Hazell 1999: 7–8


Area

Minimal

Maximal

Parliamentary reform

Limited reform of the House of Lords, involving removing the hereditary peers and re-balancing party numbers. House of Lords remains a nominated body

A predominantly or solely elected House of Lords representing the nations, regions and cities. Some changes to strengthen its functions and powers

Referendum rejects electoral reform for House of Commons

House of Commons elected by proportional representation

Closed list PR for elections to the European Parliament (EP), enabling voters only to choose between two parties

Open list PR for EP elections, enabling voters to choose between individual candidates

A rights culture

European Convention on Human Rights (ECHR) as part of UK statute law but no Human Rights Commission to promote a new rights culture

ECHR as part of UK law, Human Rights Commission, domestic Bill of Rights either in preparation or already in the statute book

Openness

Restricted Freedom of Information (FOI) regime, focused mainly on access to personal files

Liberal Freedom of Information Act (FOIA) enabling access to general government information

Judicial Structure

Appellate Committee still sitting in the House of Lords. The Privy Council adapted to hear ‘devolution’ disputes

A new supreme court for the United Kingdom, separate from the House of Lords

Intergovernmental relations

Informal intergovernmental consultative processes based on Whitehall concordats

Formalised Council of British Isles with full time secretariat

Figure 1.1

(Continued)

The book suggested that the actual position might be any range of combinations between the two scenarios. What is striking looking back is how in almost every case it is the minimal scenario which has come to pass. The only exceptions are the gradual grant of legislative powers to the Welsh Assembly under the Government of Wales Act 2006; the creation of a Human Rights Commission, as part of the new Equality and Human Rights Commission (EHRC) in 2007; and the establishment of the new Supreme Court from 2009. In each case it has taken ten years for these changes to occur, reflecting the Blair government’s minimalist approach to the whole constitutional reform agenda. Lack of political will in the Cabinet is the main reason why one reform never happened (the referendum on the voting system for the House of Commons) and others (an elected House of Lords, British bill of rights) stalled after the first-stage reform. But lack of interest


amongst the people is a secondary reason, explaining the rejection of an elected Regional Assembly in the North East in the 2004 referendum and the failure to introduce an elected mayor in any major city outside London despite the power given to local residents in the Local Government Act 2000 to force a referendum on the issue. At a slightly lower level the institutional forecasts were pretty good. We correctly forecast the need to create a range of new constitutional watchdogs including an Electoral Commission, Information Commissioner, Judicial Appointments Commission ( JAC) and Human Rights Commission. But we also forecast a Territorial Grants Commission to advise on the distribution of government funding to the devolved bodies, which has not come to pass. The biggest omission was our failure to forecast the creation of the Department for Constitutional Affairs, now the Ministry of Justice. Although we forecast the need for a stronger locus of responsibility for constitutional matters, then scattered round half a dozen Whitehall departments, we suggested the Cabinet Office could be the place where they were pulled together. In terms of the dynamic forces released by the constitutional reform programme, our central thesis has proved broadly correct – that these would take on their own directing force, and that the cumulative impact of devolution, a rights culture, new voting systems and parliamentary reform would be greater than the sum of the constituent parts. But some of the individual dynamics we got badly wrong: notably in devolution, where we forecast much greater friction (including litigation) between the UK and devolved governments than has been the case. We were too heavily influenced by overseas experience of intergovernmental relations (IGR), and had not anticipated the harmonious effects of Labour-led administrations in London, Edinburgh and Cardiff. Nor did we anticipate how strongly bilateral the conduct of IGR would be, because of the asymmetry of the devolution settlements. At the end of the book we tried to summarise the key features of the new constitutional settlement which would emerge by listing them under five main themes. Those themes are reproduced here as a further way of summarising the main forecasts of the first Constitutional Futures. The themes, shown in Figure 1.2, are still relevant today, and provide a bridge to the analytical framework which follows and which provides the basis for this book. Broadly all these themes have been realised; but we overstated the importance of devolution and understated the contribution of a new school of constitutionalism in influencing the thinking of the higher judiciary. There was only a hint in the book that in time there may be Acts of Parliament which are regarded as organic laws and which become entrenched.1 The growth of constitutionalism, and the growing separation of powers are two themes which will receive greater space in this book.

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Quasi-federalism: rebalancing the Union Devolution would introduce some elements of a federal system: • Formal division of powers between two levels of government, but with areas of overlapping jurisdiction (for example, through exercise of the foreign affairs power by the UK government); • New constitutional court to resolve devolution disputes; • New structure of IGR. But with some big differences from classic federal systems: • • • • •

No constitutional entrenchment; Asymmetrical devolution instead of uniform division of powers; English dominance, with 85 per cent of the population; Lack of English political institutions; Central financial control.

More checks and balances on the Executive: • • • • • •

Devolution will create strong alternative centres of power; ECHR incorporation will be a significant check on the Executive; FOI will be a lesser check; The EU will continue to reduce the Executive’s freedom of manoeuvre; Parliamentary reform could improve parliamentary scrutiny; Reform will give the Lords greater legitimacy and assertiveness.

Parliamentary sovereignty gives way to popular sovereignty: • Devolution and ECHR incorporation represent an important shift towards sovereignty of the people; • Devolution referendums make it impossible for Parliament to abolish the devolved assemblies without popular consent; • As the use of referendums grows, so will political and public expectations that referendums should be used for major constitutional change. Tighter rule of law: • HRA confers new powers for the courts; • Devolution will give the courts an important role in adjudicating devolution disputes; • Pre-legislative proofing for ECHR and jurisdictional compliance; • EU will be a source of further legal challenges, with the courts gradually introducing European norms of rule-based administration; • Other watchdogs apart from the courts will help to ensure due process and reduce administrative discretion; • Separation of Crown and state in the language and reasoning of the courts, making the state more susceptible to judicial control.

Figure 1.2

Themes from the first Constitutional Futures

Source: Hazell 1999: 230–9

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Introduction: Forecasting Constitutional Futures

Pluralist instead of majoritarian democracy: • PR in Scotland, Wales and Northern Ireland will make it harder for a single party to form a government; • Coalition governments will see the development of more inter-party agreements; • Devolution will cause fragmentation of major parties and growth of minor regional parties; • Increased consultation and participation will result from due process requirements of ECHR, FOI and pre-legislative scrutiny of draft bills; • Lords reform could also lead to a more consensus style of politics, if government does not necessarily have a majority and has to negotiate and build up coalitions of support to get its measures through.

Figure 1.2 (Continued)

One of the major lessons from the original Constitutional Futures is the impossibility of capturing the future in a single set of forecasts. That is why we offered two broad scenarios, and predicted that which scenario came to pass would depend primarily on the degree of political will and commitment from the new government. (Even in 1998 it was apparent that Labour’s commitment to some of the reforms was thin.) Since that time futures studies has developed strongly as a discipline, and in working on this book we have been able to draw upon the systematic techniques it offers for developing a range of future scenarios. The next section explains briefly the forecasting techniques we have used, before we apply this method to building four constitutional scenarios.

Forecasting techniques The forces outlined above indicate that there are several different directions which constitutional change could take. It is therefore worth thinking beyond just mini and maxi scenarios. For this reason, we have borrowed forecasting techniques from futures studies to add rigour and texture to our analysis of the future. Our chosen method of ‘scenario planning’ is based on delineating different futures on a two-by-two matrix, based on an analysis of the ‘drivers’, the main forces and events that will influence the shape of the future. The process, explained in greater detail in the appendix to this chapter, has three main stages: first, analysing the drivers which will shape the future constitution; second, working out how these drivers relate to each other: which affect common themes and which cause, contradict and exacerbate which others; third, reducing these drivers to two critical dimensions – the lines on which the future shape of the constitution will be drawn – and using these as axes to create a matrix of four quarters. This leads to four different scenarios which provide the framework for the book.


Constitutional scenarios The forces driving the shape of the constitution come from a variety of sources. An initial list, shown in Figure 1.3, was created through brainstorming and discussion at a two-day workshop for contributors to this volume. It shows the range of different forces which now help to shape the constitution, from above and below, from all parts of the UK thanks to devolution and from abroad because of European and global influences. It also shows the array of different players who can now influence constitutional developments. There was no systematic attempt to mention all the branches of government or the new constitutional regulators, because the brainstorming was conducted in small groups using scatter grams; but it is noteworthy how Figure 1.3 gives strong roles to Parliament and the judiciary, and includes such bodies as the Electoral Commission, the Equality and Human Rights Commission and the Information Commissioner. Constitutional change is not just driven by the executive branch of government. Using this selection, we then considered which were likely to have the most critical influence on the future shape of the constitution. On the macro level the two most critical groups of drivers seemed to pertain to, first, the dispersal or concentration of power and, second, the political or legal status of the constitution. These provide the axes for our matrix. Reducing constitutional issues to two dimensions of course risks simplification. But the

Devolution

Whitehall

• • • • • • •

Scottish, Welsh nationalism Campaign for an English Parliament English nationalism Media reporting of English Question English votes on English laws Pressures on Barnett formula Provincial resentment of London and South East • Policy divergence • New governments in Scotland, Wales and Northern Ireland

• • • • • • • • •

Political parties

Media

• • • •

• • • •

Declining party membership Change in leadership of major parties Decline in two-party system Tighter regulation by Electoral Commission

Figure 1.3

Constitutional drivers by theme

New Civil Service Code New Ministerial Code Civil Service Act Rise in external consultants New Public Management E-Democracy Technological changes Public spending squeeze Declining contact with devolved administrations

24/7 news culture Personality-driven news coverage Decline in traditional media Proliferation of new media

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Parliament

Human Rights

• • • • • • • •

• • • • • •

More assertive House of Lords Elected House of Lords Electoral reform Legislative-executive relations Parliament and the judiciary Stronger scrutiny role Lords Constitution Committee Public Administration Select Committee • Justice Select Committee • New Speakers in Lords and Commons • New Leaders in Lords and Commons Public • • • • • • • •

Declining trust Multi-culturalism and integration Declining voter turnout Politicisation of ‘populist’ nationalism Secular versus religious society Demographic changes Demands for direct democracy Disengagement from conventional politics

Judiciary • • • •

Judicialisation of politics Judicial–executive tensions Judicial Appointments Commission Lord Chief Justice and Judges’ Council • Higher profile for judiciary • Pressures for more representative judiciary • Government and media criticism of judiciary

EHRC Joint Committee on Human Rights British bill of rights Tabloid campaign against HRA European Court of Human Rights Impact of terrorism

Future Events • • • •

Political scandals Policy disasters New Sovereign General elections in 2009? 2013? 2017? • Devolved elections in 2011, 2015, 2019 • European Parliament elections in 2009, 2014, 2019

European Union • • • • • •

New EU constitution EU Charter of Rights EU enlargement European Court of Justice EU regional development funds Closer co-operation in Justice and Home Affairs


method gives analytical clarity and is justified by the fact that we are still able to capture what we predict to be the most important aspects of constitutional change up to 2020. The axes coincide with the drivers which emerged ex post facto from Constitutional Futures (as shown in Figure 1.2),


Concentration of power

Dispersal of power

• Centralism • Representative-passive democracy • Uniformity • Unionism • Britishness • Strong centre in Whitehall • Two-party system • Unified civil service

• Decentralisation-multi-level governance • Direct-active democracy • Diversity • Separatism • Scots, Welsh, English • Weak centre, federal civil service • Multi-party system • Fragmented civil service

Figure 1.4

Concentration versus dispersal of power

and they capture the dimensions of the two biggest changes in the UK’s constitutional reform programme. These two changes have been devolution and the HRA. The first was a huge step towards decentralising a unitary system of government; the second has the potential to be a huge constraint on the legislative supremacy of Parliament. These axes are shown in Figure 1.4 and described below. The relationship between these axes and established political science and legal theories is expanded upon in the appendix to this chapter. Concentration of power versus dispersal of power If constitutions are about defining and regulating the institutions which exercise political power, how power is dispersed or concentrated is crucial to the future shape of the settlement. Primarily this means whether power is geographically dispersed so that concentration of power illustrates the centralisation of power in the British political system before devolution, with power strongly concentrated in Westminster and Whitehall. Unionism is a strong political ideology and Britishness strong in national identity. There is a majoritarian two-party system with strong single-party government. Public policy is uniform throughout the UK, implemented by a unified civil service. Local government is weak and implements policies determined by central government. The opposing pole illustrates the dispersal of power. Post devolution there are strong alternative centres of power in Edinburgh, Cardiff and Belfast. Unionism is weaker as an ideology, and people in Scotland, Wales, Northern Ireland and England have a stronger sense of their Scottish, Welsh, Irish or English identity, and a weaker sense of Britishness. Demands for separatism are more frequent and separatist or nationalist parties win more votes, at the expense of unionist parties. There is a multi-party rather than two-party system. This leads to frequent coalition or minority government, weaker

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executives vis-à-vis the legislature and more pluralist politics. Public policy is more divergent, and the civil service is no longer unified. Local government is stronger, politically and financially, and has greater autonomy to determine its own policies. As a result of greater diversity there is also greater inequity in public policy provision. So far this analysis has been about dispersal of power within the nation state. But power at the nation state level has been hollowed out from above as well as below. If concentration of power here means concentration at the level of the nation state, dispersal of power can be upwards as well as downwards. At the supranational level power is dispersed to European and global institutions. The more power is exercised by the European Commission and Council of Ministers, European Parliament and European Court of Justice (or the Council of Europe and European Court of Human Rights), the less autonomy there is for national governments and parliaments. The same goes for global institutions like the United Nations, World Trade Organisation and International Court of Justice. A further dimension of concentration versus dispersal of power can be expressed in terms of representative versus direct democracy. On this dimension concentration of power represents the sovereignty of parliament, with passive subjects having no power to influence politics or policies in between elections. Dispersal of power represents the sovereignty of the people, with active citizens voting in referendums and participating in citizens’ juries and other forms of direct democracy.

Political constitution versus legal constitution In a famous polemical lecture John Griffith drew a distinction between the political and the legal constitution (Griffith 1979). This provides the basis for the second axis of the matrix, with the key variable being whether executive power is held in check politically by the elected House of Commons, or legally by unelected judges and other guardians. These axes are shown in Figure 1.5. One pole represents the political constitution. Parliamentary sovereignty is the dominant principle. Ministers have very wide discretion, including over how much or little information to disclose, but they are called to account and kept in check by Parliament. There are no recognised rights: it is up to Parliament to protect civil liberties. The judiciary are appointed by the executive and show deference to parliamentary sovereignty and executive necessity. There are few external checks on the executive apart from Parliament, and the system is based on a high degree of trust that the executive and Parliament are the best judges of the public interest. The logic of this system is that solutions to political problems must be political themselves – ‘law is not and cannot be a substitute for politics’


Political constitution

Legal constitution

• • • • • • • • • •

• • • • • • • • • •

Figure 1.5

Parliamentary Sovereignty Fusion of powers Elected politicians Ministerial discretion Political accountability Unfettered executive Weak judiciary Weak human rights regime Few external checks Based on trust

Constitutionalism Separation of powers Unelected guardians Tighter rule of law Legal checks and balances Constrained executive Activist judiciary Enforcement of human rights Strong constitutional watchdogs Based on mistrust

Political versus legal constitution

(Griffith 1979). Political constitutionalism, therefore, does not allow for the entrenchment of rights in the constitution because there is no consensus, for example, on what a Bill of Rights should contain. Rights are simply an expression of power relationships – ‘concealed political propaganda’ (Griffith 1979) or ‘little more than the view held by the hegemonic group or officials with the power to decide’ (Bellamy 2007a: 151). The process of judicial review is also not democratically satisfactory: judges ‘resolve their disputes by the very democratic procedure they claim to supersede – majority vote’ (Bellamy 2007b: 12). Further, responsibility for problem solving would be passed from Parliament to the judiciary (and from an accountable body to an unaccountable one). At the other pole, which represents the legal constitution and the principle of legal constitutionalism, power is passed in this direction. Legal constitutionalism is a theory of limited government which constrains the supremacy of Parliament, subjecting it to a range of legal checks and balances and relocating the final authority to interpret and enforce fundamental law in the judiciary (Kramer 2004). Here the logic is that Parliament cannot be trusted always to uphold democratic values and human rights.2 This is not a particularly new idea in itself but has gained relevance recently for a number of reasons: first, the perceived inability of the legislature to hold the executive to account; second, globalisation and the increasing importance of international law; third, the perception that judges are apolitical and as a result able to make objective decisions as opposed to partisan or politically motivated decisions. The basis of governance is no longer parliamentary sovereignty but the rights of the individual, and it is judges that interpret whether or not the rights of the individual are being upheld. In practice this involves the creation of statutes which entrench certain rights of individuals and organisations in the law beyond the reach

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of Parliament. There is a greater separation of powers, and the judiciary constrains legislative and executive freedom by means of interpreting the statutes. Specialist constitutional watchdogs are also set up (such as the office of the Information Commissioner) to regulate the executive.

The four constitutional scenarios If these two variables will define the shape of the future constitution, putting them into a matrix enables us to present four scenarios which differ in the two most important respects. The four scenarios, or ideal types, which result can be described as the Old Constitution, Centralised Constitutionalism, Westminster Devolved and Dispersed Constitutionalism. The matrix is shown in Figure 1.6. The Old Constitution The scenario in the north-west quadrant is the classic Westminster Model. It represents the ‘old’ constitution as it was 10 or 20 years ago, with a highly centralised system of government, little or no devolution and very few checks and balances on the unfettered executive. Parliamentary sovereignty is the dominant principle. There is a strong two-party system, with the party in power being able to do almost anything it wants, subject only to retaining the support of its parliamentary majority. Public policy is delivered uniformly throughout the UK. There are no constitutional watchdogs apart

Concentration of Power

The Old Constitution

Centralised Constitutionalism


Legal constitution

Westminster Devolved

Dispersed Constitutionalism

Dispersal of Power Figure 1.6 Overarching constitutional scenarios


from the Ombudsman and Auditor General. Advocates of parliamentary sovereignty (and sceptics about enforceable bills of rights) include John Griffith (1979), Keith Ewing (2002a), Richard Bellamy (2007a, 2007b) and Adam Tomkins (2002). As a scenario this seems implausible, unless there were a reversion towards the status quo ante 1997, with repeal or reduction of the devolution legislation, the HRA, Freedom of Information Act (FOIA) and so on.

Centralised Constitutionalism The north-east quadrant represents a scenario in which there is little decentralisation of power, but checks and balances are introduced to constrain the supremacy of Parliament and the discretion of the executive. These include a bill of rights, a stronger judiciary and a range of constitutional watchdogs (Information Commissioner, Electoral Commission and so on). Political parties are subject to tighter regulation. Devolution is limited to Scotland, Wales and Northern Ireland, with no extension of their powers, and there is no development of regional government in England. Public policy remains highly uniform, especially in England. Local government remains weak. Advocates of a strong central state delivering uniform public policies include David Walker (Walker 2002). If we were looking for an overseas model to illustrate this scenario in the common law world, it could be New Zealand, which until 20 years ago was an archetype of the Westminster Model, but has since introduced an impressive array of legal and constitutional checks and balances (Palmer 1987; 2004). Or in Europe it could be represented by France, which has a strong belief in uniform public policies, but also imposes legal and constitutional constraints on the executive and parliament through bodies such as the Conseil Constitutionnel and the Conseil ´ d’Etat.

Westminster Devolved The south-west quadrant depicts a scenario with a lot of decentralisation, but few other checks and balances on central government. Scotland, Wales and Northern Ireland gain increased powers, ‘creeping regionalism’ continues in England, and local government gains greater autonomy. Public policy is more diverse. But at Westminster the sovereignty of Parliament remains dominant: there is only a weak bill of rights, a deferential judiciary and few constitutional watchdogs. Advocates of this model include Dawn Oliver (2003), who regrets the need for more and more legalisation and would like the political constitution and Parliament to work better in checking the executive. In terms of overseas models, it might be represented by Australia, which is decentralised, but has no bill of rights and few other checks and balances on the federal government apart from the federal system.

18


Dispersed Constitutionalism The south-east quadrant represents a scenario in which power is dispersed geographically, with a lot of decentralisation, and central government is subject to many more checks and balances. Scotland, Wales and Northern Ireland gain increased powers, ‘creeping regionalism’ continues in England and local government gains greater autonomy. Public policy is more diverse. There is a bill of rights, a strong and activist judiciary and a wide range of constitutional watchdogs. Advocates of Dispersed Constitutionalism include the Liberal Democrats, pressure groups like Unlock Democracy (which has incorporated Charter 88), and academics like Neil MacCormick (1999) and Beetham et al. (2002, 2008). If we were looking for an overseas model to illustrate this scenario it could be Canada, which is highly decentralised and highly constitutionalised, in that it has a weak parliament, a strong bill of rights, a strong Supreme Court and an array of quite powerful constitutional watchdogs.

Dispersed Constitutionalism the most likely future scenario Another way of looking at the matrix in Figure 1.6 is to consider the direction of travel. Before 1997 the British constitution was squarely in the north-west quadrant, with a highly centralised system of government and very few checks and balances. All the changes since 1997 have moved the British position south and east. If the present position in 2007 is represented by the centre of the matrix, then future changes are likely to drive the British constitution still further south and east. A return to the Old Constitution is highly unlikely. It is not advocated by any political party, not even the Conservatives. And a shift to the north-east or south-west quadrants is not very plausible. A shift to Centralised Constitutionalism in the north-east would require the repeal or diminution of devolution, when current forces all point in the other direction. A shift to Westminster Devolved in the south-west would require the repeal or diminution of the HRA, FOI and the Constitutional Reform Act 2005. The first two developments are conceivable, given the Blair government’s evident dislike of the HRA and FOI, and the Conservatives’ wish to repeal the HRA (Cameron 2006). But reducing the separation or independence of the judiciary seems unlikely, and generally the pressures for greater legalisation and judicialisation seem stronger than a reversion to the political constitution. Each of the chapters in this book uses the overarching matrix as the main framework for organising future scenarios, and develops from that a specialist matrix or matrices for its own subject matter. These specialist matrices use at least one of the axes from the overarching matrix (centralism versus decentralisation, or political versus legal constitution) so that there is a uniform treatment underlying all the scenario planning running through the book.


Structure of the book The book is organised into four main parts. Part I covers the future of devolution, with separate chapters on devolution in Scotland and Wales, in Northern Ireland and in England, and chapters on IGR and finance, and Britishness. Part II looks at the future of the key institutions of the central state, with chapters on the judiciary, on Whitehall and on the monarchy. Part III addresses the growing constraints on the central state through new forms of accountability: human rights law, FOI, the proliferation of constitutional watchdogs, and the pressures of the modern media. Finally Part IV looks at the main representative institutions, with chapters on the regulation of political parties, changes to the electoral system and the future of Parliament. The sense throughout the book is of a constitution continuing to change rapidly following the big changes introduced during Blair’s first and second terms. But (to anticipate the conclusions of the final chapter) further very big constitutional changes on the scale of devolution or the HRA are unlikely. There will be plenty of stresses and strains as devolution continues to loosen (but not break) the bonds of the UK and as the judiciary and Parliament both become more autonomous and more assertive. This will undoubtedly lead to more constraints on the UK executive, previously regarded as famously untrammelled and the archetype of the majoritarian Westminster Model. The final chapter analyses where the Westminster Model will end up, as a result of all the constitutional changes so far, and those still to come.

Appendix Futures studies and forecasting techniques The literature on constitutional reform tends to be ‘present-descriptive’, describing how things are; or ‘future-prescriptive’, prescribing how they should be (see Evans 2003: 287; Mount 1993: preface). Few studies tend to be predictive. But policies should be made and legislation passed for the future. Studying what the future might look like and what is likely to influence the shape of the future will better inform our plans and reactions in the present. Predicting the future is uncertain. It is important to think in terms of different possible versions of the future, or ‘scenarios’. We believe that borrowing critically from futures studies and combining these methods with political science and legal theories can add rigour to the forwardlooking process. To help do this we will first explain how the history of futures studies has informed the development of its methods; second, move on to why futures studies methods are compatible with this study; and finally, explain scenario-planning and its relevance to a study of the constitution.

20


A brief history of futures studies When the World Futures Studies Federation, the professional body for ‘futurists’, was being set up, there was a disagreement: was it to be Futures Studies plural or Future Studies singular? The western Europeans wanted Futures plural; the Russians insisted there was only one future, the communist one (Inayatullah 2005: 401). Uncertainty goes beyond the name of the discipline, however. The history and foundations of futures studies as we understand it – the exploration of driving forces and building of possible future scenarios – are inextricably linked to uncertainty. A brief analysis of this fact should be of assistance in our own predictions. Despite harking back to the certainty of a weighty ancestry – Plato, Thomas More and von Clausewitz, for example (Bell 2005: 4; Bradfield et al. 2005: 797) – futures studies as we know it developed after the Second World War, when there was no ‘end of history’ in sight and the political and military climate was uncertain. During and after the Second World War, RAND Corporation is credited with the development of scenario planning, fulfilling the need of the US military for war game simulation models. The increasing processing power of computers and the theoretical structure of game theory aided its development (Bradfield et al. 2005: 798). Herman Kahn, who adopted the word ‘scenario’, resigned from RAND to set up the Hudson Institute, which further developed scenario techniques and moved these into the civil domain (van der Heijden 2005: 3). Scenario techniques offered the advantage of allowing the opinions of large numbers of experts to be harnessed in the simulation of multiple possible futures, and allowed the consequences of various policy options to be tested against these alternative futures (Bradfield et al. 2005: 798). According to the Futures mythology, Shell was the first company to make use of forecasting techniques, and its success caused the number of scenario planners to double after 1973 (Bradfield et al. 2005: 803). Shell aimed to develop its engineering projects such that they had positive returns under any of the scenarios they developed, with no scenario deemed more likely than any others (van der Heijden 2005: 4). When thinking about the future scenarios, the most critical factor at the start of the 1970s was the price of oil, and therefore the principle of supply and demand. Differentiating between the predictable and the uncertain, Shell’s scenario planners thought demand was predictable, having risen 6 per cent each year since the Second World War. However, the planners wondered whether it would make sense from the point of view of the oil-producing governments to continue to supply the increasing quantities of oil required. This was deemed sufficiently uncertain to make it worth developing a new scenario, dubbed the ‘energy crisis scenario’ (van der Heijden 2005: 5). When elements of this scenario were recognised in the developments in the Middle East in 1973, Shell was able to shift its investments before its competitors. Consequently, after the


oil price ‘shock’, Shell’s profitability suffered much less than the industry’s as a whole throughout the 1970s and the 1980s (van der Heijden 2005: 4–7). Since then, the popularity of forecasting and scenario planning has endured, with numerous governmental organisations at a national or supranational level either commissioning forecasts or setting up a dedicated Futures unit,3 and forecasting as a discipline starting to gain academic credibility.4 Given the aims and audience of this volume, we drew on sources from the worlds of academia and public policy to inform our techniques.

The relevance of forecasting techniques What sets Constitutional Futures Revisited apart from other books on constitutional reform is the fact that it is able to look at the constitutional reforms holistically. As ‘futurists’ have developed systematic techniques for identifying forces shaping change and exploring the different outcomes of their interaction, borrowing critically from these will strengthen the possible versions of the future that we will present. The aim of this section is to introduce the futures techniques that we have chosen – principally ‘scenario planning’ – and show why they fit a study of this kind. The stated aims of this volume sit neatly with the tenets of futures studies. Broadly speaking, there are two possible reasons for undertaking a study of the future: to be predictive, to say what can or what might happen, what is ‘possible’ or ‘plausible’; and to be prescriptive, to say what ought to happen, what is desirable (see Voros 2005: 11). In this volume we will concentrate on the first aim; we will not seek to prescribe the direction of constitutional change or stasis, but will simply describe versions of the future which are ‘possible’ and ‘plausible’, occasionally passing judgement on what is most ‘probable’. If there is no right answer, it is not wise to present one single answer. Just as the discipline goes by the name of ‘futures’, not ‘futures’, studies, pluralism is at the heart of a predictive study: ‘it seems self-evident [ . . . ] that nobody, however expert, can come up with a justifiable answer for the probability of a unique event’ (van der Heijden 1997: 7). For this reason, we will present a selection of scenarios on both the ‘macro’ level of the constitution as a whole, and the more ‘micro’ level of its constituent parts. How are these alternative visions of the future arrived at? While in futures studies, as elsewhere, there is ‘no single, fully developed theory of social change’, explaining or predicting change in the futurological, as well as the constitutional, field rests upon an assumption of identifiable dynamics. According to van der Heijden (2005: 117), ‘we need to look for forces and relationships that, by already existing, constrain or determine the future in important ways’. Constitutional change can be conceived of in a similar light. In 1999 it was predicted that ‘[c]onstitutional reform is likely to release dynamics in politics and the law which will take on their

22


own directing force’ (Hazell 1999: 4). This is still true today, with successive ‘waves’ (Hazell 2006a) still breaking. Even if there are shared underlying assumptions, the general description of futures studies given above hides a multiplicity of different techniques and applications (Bradfield et al. 2005: 803; Slaughter 2002: 230). Seventeen methods were identified in 1975, and more have been added to the repertoire since. It is therefore not feasible to write an evaluation for each method here. Suffice to say that we have rejected those methods which entail the articulation and shaping of desired futures (see Cabinet Office 2001 and Lang n.d.) and those which crowd out the role of intuition (see Ritchey 2005). The most suitable method for our purposes is ‘scenario planning’ (see van der Heijden 1997: 219–72), more specifically, the ‘matrix approach’ (van der Heijden 1997: 247).5

The matrix approach in scenario planning, political science and legal theory The core of the scenario-planning process is presented in Figure 1.7. Briefly, it involves the following: first, the analysis of forces expected to influence the future outcome of the area in question; second, reducing the multiplicity of drivers to two key dimensions; third, using these as a matrix to articulate four logical and plausible scenarios. Why have we adopted this method? First, the overarching three-part process – input, analysis and prospection, itself a form of analysis – as suggested by Voros (2005: 9) is an intuitive and universal approach to creating and analysing content – ‘in a word [ . . . ] scholarship’ (Slaughter 2005: xi). The thorough and methodical nature of the analysis moves us away from, for example, simplistic extrapolation, and reduces the effect of hidden bias or normatism. Second, the way the process is developed is conducive to the use of the ‘expert’ (van der Heijden 2005: 222). Indeed scenario techniques arose during and after the Second World War precisely because of the advantage they offered in allowing the opinions of large numbers of experts to be harnessed in the simulation of multiple possible futures (Bradfield et al. 2005: 798). Our use of experts of different disciplines in turn increases the holistic aspect of the volume, such that we are able to gauge the effect of the interaction of the different chapter areas with each other and on the whole. Third, the matrix itself. Organising scenarios using two variables is not perfect. It is an advance on one dimension, but necessarily entails simplification. There are advantages however. It stops us arbitrarily picking and choosing the changes we describe, for example. But using matrices in political science is not novel or controversial. In Patterns of Democracy Lijphart (1999) uses a two-by-two matrix to classify political systems. Flinders (2005) has used this matrix and Lijphart’s criteria to evaluate change in the nature

23

1. Input Aim: to collect knowledge on and novel ways of looking at the area in question. Output: an unstructured list of 25–50 drivers that may affect the area in question. Method: normally taking place in a workshop, this is the ‘brainstorming’ phase. Firstly, it involves identifying the purpose, question or system to be focused on. Secondly, the experts generate ideas and potential variables according to two questions: What is happening that might matter? What could happen that might matter? (At this stage, it is not necessary to worry about structuring, linking or defining causality in the data.) 2. Analysis Aim: to structure the knowledge generated in phase one. It is useful to divide this phase into two parts: clustering and identifying drivers. 2.1. Clustering Aim: to organise the information collected in order to make the thematic interrelations of the information visible. Output: groups of thematically linked variables. Method: clustering involves finding logical criteria according to which the phase one variables can be organised. It may involve trial and error. As a consequence the variables can start to be seen as a system. (Alternatively, the clusters can be imposed before the brainstorming in phase one.) See Figure 1.3. 2.2 Identifying the ‘drivers’ Aim: to identify the causal relationships, driving forces and key events in the clusters of drivers. Output: ‘influence diagrams’ showing the causal relationships in the clusters. Method: (1) Identify which drivers are events and which trends. (2) Identify which variables are linked. (3) Draw a line between those that are. (4) Identify what is driving what: ask of each variable: what happens if it goes up or down? why would it go up or down? (5) Ask what other events might be related. (6) Look out for vicious or virtuous circles – ‘positive feedback loops’. 3. Prospection Aim: the creation of a limited number of equally plausible scenarios in which the insights from the previous stages can be reflected. Output: a description of and narrative for each scenario. Method: (1) Identify two drivers, or clusters of drivers, with high potential impact and high uncertainty. (2) Express the outcomes as binary opposites, e.g., ‘increasing insecurity’ and ‘decreasing insecurity’, or ‘reactive citizen’ and ‘proactive citizen’. (3) These then become an x and y axis, giving rise to a two-by-two matrix, and four scenarios. (4) Add detail to the scenario and create a narrative to describe how the end state of the scenario is arrived at. See Figures 1.4 and 1.5.

Figure 1.7

The matrix approach to scenario planning

Source: van der Heijden (2005: 219–72); Voros (2005); Godet (2000); Cabinet Office (2001)

24


Westminster (Majoritarian) model

Consensus model

1. 2. 3. 4. 5.

1. Power sharing in multi-party system 2. Executive-legislature balance of power 3. Multi-party system 4. Proportional electoral system 5. Co-ordinated interest groups

Single-party majority cabinet Dominant executive Two-party system Majoritarian electoral system Pluralist, competitive interest groups

Figure 1.8 Lijphart’s executive-parties dimension

Westminster (Majoritarian) model 6. Centralised government 7. Power concentrated in one chamber 8. Flexible constitution amendable by normal majority 9. Legislatures have final word 10. Central bank controlled by executive

Consensus model 6. Decentralised government 7. Power balanced between two chambers 8. Rigid constitution amendable by extraordinary majority 9. Laws subject to judicial review 10. Independent central bank

Figure 1.9 Lijphart’s federal-unitary dimension

of the UK’s political system. Instead of using a matrix to evaluate change, we are using it to predict change. Why did we not simply adopt Lijphart’s matrix (shown in Figures 1.8 and 1.9)? First, not all Lijphart’s variables are valid for our study – interest groups (variable 5) and central banks (variable 10) are not drivers of constitutional change. Second, adopting this would have been to impose a structure on the analysis a priori. In hindsight, this would have obscured what we have now identified as one of the main areas for change with the highest potential impact on a macro level: variables 8 and 9 in Lijphart’s terms – what we have described as the political or legal constitution. We believe this aspect should be given greater emphasis and dealt with in more detail, which we have done by drawing on the work of political scientists and constitutional lawyers. As a result of this, we have effectively compacted the remainder of Lijphart’s two dimensions into one: concentration versus dispersal of power. In Tsebelis’s (2002) terms, this axis runs from a single ‘veto player’ – or actor or group of actors that has to agree to a policy change – to many. Finally, there is a certain amount of flexibility in the development of the scenarios. A variety of methods can be used: ‘from the most qualitative to the most quantitative’. This is useful in an edited volume with a large number of contributors, who are given room to use their own judgement. Scenarios


also emphasise story-telling (van der Heijden 1997: 12): ‘they permit people to visualise and explore alternative futures’. We hope that tangible and graspable narratives will help bring the scenarios alive for the wide audience we are aiming for with this volume.

Notes 1. See Jackson and Others v Attorney General [2005] UKHL 56, where Lord Steyn said, ‘[t]he classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish’ (para 102). 2. Although constitutionalism is promoted mostly by lawyers, Lord Steyn (1997:8) has argued: ‘The principle of constitutionalism [ . . . ] is neither a rule nor a principle of law. It is a political theory as to the type of institutional arrangements that are necessary in order to support the democratic ideal. It holds that the exercise of government power must be controlled in order that it should not be destructive of the very values which it was intended to promote.’ 3. Government organisations in the UK using forecasting include the DCA (2007a); Foresight, the Office for Science and Technology (2006a and 2006b); DEFRA (2004); Department for Transport (2007); Development, Concepts and Doctrine Centre (DCDC) (2007); Performance and Innovation Unit (2001a and 2001b); Scotland’s Futures Forum (2007). 4. See, for example, the Tomorrow Project’s partnership with the Economic and Social Research Council (Tomorrow Project n.d.). 5. We will refer to the ‘matrix approach to scenario planning’ simply as ’scenario planning’, as this is by far the most common approach.


Part I The Decentralised State


2 Scotland and Wales: The Evolution of Devolution Alan Trench

Introduction This chapter is about the future of devolution in Scotland and Wales, the two parts of Great Britain that have experienced devolution to elected substate institutions since 1999. Less than a decade on, it is easy to forget quite how significant a development that was, so quickly has devolution become an accepted part of the political and constitutional framework of the United Kingdom. Yet the achievement of that model of devolution followed many years of debate and struggle on the part of supporters of institutional autonomy or ‘home rule’ for those nations and took many aspects of British government into uncharted territory. It is little wonder that a large part of the first Constitutional Futures (Hazell 1999) was devoted to considering the immediate and longer-term implications of that form of devolution, for the United Kingdom as a whole as much as for Scotland and Wales themselves. This chapter examines some likely paths of constitutional development for Scotland and Wales in the coming years. Devolution has already created a set of institutions and processes as a result of Scottish and Welsh distinctiveness, and the existence of these also means that there is an enduring constitutional debate about those parts of the United Kingdom and their relationship to the United Kingdom at the centre. While the institutional framework of devolution may leave a great deal of power in the hands of UK institutions (discussed in detail in Trench 2007), different attitudes toward what government should do and how it should do it had already become apparent during the first two terms of devolution in Scotland and Wales, when Labour had continued to dominate all three governments. In this sense there is a tension (even a contraction) between the centralised institutional structure of devolution and its political logic. Quite apart from any other factors, the dynamics of party politics suggest on a common-sense basis that will continue, following the strong performances of the Scottish National Party (SNP) and Plaid Cymru in the May 2007 elections and 29

30

The Decentralised State

the subsequent entry of both parties into government (the SNP as a minority administration, Plaid as junior partner in coalition with Labour). The argument presented here is that devolution’s development is likely to be in the general direction of increased diversity and the constitutional differentiation of Scotland and Wales from the United Kingdom as a whole. The chapter identifies three main sets of drivers which have this effect: devolution and its relation to nationhood within the United Kingdom, differentiation within the political and party system, and a range of social and economic differences between Scotland or Wales on the one hand and the United Kingdom as a whole on the other. The effect of these, taken together, is that Scotland and Wales are likely to develop in different ways to the United Kingdom as a whole, and for various political reasons to accentuate those differences – with significant constitutional consequences. These factors also mean that protracted constitutional debates are likely to be a fact of political life, never clearly resolved, but recurring regularly. These are, of course, live issues. While constitutional debate was limited between 1999 and 2007, as the devolved institutions ‘bedded in’ and with Labour dominating all three governments, that ceased to be the case after the May 2007 elections. In Wales, many constitutional questions were left open by the Government of Wales Act 2006 – that was its political magic (Trench 2006). That Act’s provisions for giving the National Assembly ‘enhanced legislative powers’ by legislative competence orders and other mechanisms mean that a wide range of day-to-day policies has constitutional implications as well. By providing for the Assembly to acquire ‘primary legislative powers’ after approval by a referendum, the Act means that the constitutional debate issues will persist until a referendum has been held (and won – a no vote will put other constitutional issues on the table instead, and invite a further referendum later).1 In Scotland, not one but two constitutional debates opened up during 2007. On the one hand is the Scottish Government’s ‘National Conversation’ aimed at building support for independence but also considering measures short of that, and on the other is a ‘Scottish Constitutional Commission’, approved by the Scottish Parliament (meaning the Labour, Conservative and Liberal Democrat parties at Holyrood), to look at extending the scope of devolution but with independence firmly ruled off the agenda. That commission has been established as an initiative not just of the Parliament but also the UK Government, and is chaired by Sir Kenneth Calman; it is to report in the spring of 2009. (For more details of the political goals of each process, see Scottish Government 2007, Salmond 2008 and Alexander 2007.) Both these processes are likely to prove open-ended as well as protracted, largely because the debate itself does not end: even if Scotland were to become independent, the nature of its relationship with the rest of the United Kingdom would remain. This chapter treats Scotland and Wales together. This is done partly for reasons of organisational convenience. It does not mean that Scotland and

Alan Trench 31

Wales are inherently similar to each other nor that their patterns of constitutional development have followed the same course. Each is distinctive in many respects, institutionally and socially in particular, and the discussion here suggests that these differences may lead to significant differentiation in their constitutional politics and development over the coming years. But it is also interesting constitutionally speaking how many resemblances there are between the two. These arise largely for the very obvious reason that while these two countries have distinct identities, histories and increasingly distinct institutions, they have one major thing in common: membership of the United Kingdom and the constitution and pattern of government that comes with it. Treating them together highlights both the common ground they have as distinctive nations within the United Kingdom as well as the differences between them. The question of the implications of devolution for the United Kingdom as a whole is discussed in Chapter 3; this chapter is concerned with what forms change might take and the consequences of that for Scotland and Wales.

The drivers of constitution-making in Scotland and Wales Driver 1: Nationhood and national differentiation This is not the place for a detailed discussion of what is distinctive about Scotland or Wales, their place in the United Kingdom and their relationship with England and its other parts. For present purposes, there are two essential points. First, Scotland has and has long had distinctive politics, even when these operated in relation to the UK Parliament or local government (Bennie, Brand and Mitchell 1997). In addition, Scotland of course has long had a high degree of institutional distinctiveness as well (McCrone 1992; Paterson 1994). In many fundamental respects, Scotland is simply different – whether one goes so far as to view it as a distinct political system (Kellas 1989) or not. Wales is less clearly distinct, but is also unlike England (or Scotland) in many important respects (Morris 1999), even though that has involved many fewer distinctive institutions. Indeed, the issue of how distinctive Wales is, and of the extent to which that requires distinct political institutions, is one of the key areas of debate since devolution came onto the agenda in the mid-1990s. It also accounts for the rapid constitutional evolution of the National Assembly and its metamorphosis from a democratised version of the office of Secretary of State for Wales to a virtual parliament in only four years (Rawlings 2003a), as well as the more radical blueprint suggested by the Richard Commission (Richard Commission 2004). This leads to the second point: devolution is a national phenomenon – a response to demands for national recognition by two peripheral parts of the United Kingdom (Rawlings 2003b uses this approach for Wales, but it applies at least equally strongly to Scotland). That explains both why it has happened in Scotland and Wales but not in England and also why it assumes

32


a particular divergent (and indeed fissiparous) logic. Scotland’s and Wales’s conceptions of themselves as distinct nations (however limited that may have been in Wales’s case) mean that devolution was not only possible but a logical response to their positions in the United Kingdom. It also helps explain why it has not happened in the case of English regions, even ones like the North East, that are disaffected with rule from or by London. The fact that devolution in both Scotland and Wales is national helps explain one of its key institutional features: its asymmetry. Each set of devolution arrangements is in effect a bilateral bargain between that part of the United Kingdom and the United Kingdom at the centre, without necessarily reshaping how the United Kingdom as a whole works. While devolution has responded to the distinctiveness of Scotland and Wales, it also creates politics that will build on that distinctiveness in the future. Moreover, as a result it also privileges political nationalism in a way that (after an initial hiatus) has worked to the advantage of the nationalist parties and the disadvantage of unionist ones. One of the reasons for this has been that it is simply easier to offer a nationalist narrative than a unionist one, particularly in Scottish or Welsh arenas. The impact of this is increased by the failure of the Britain-wide unionist parties to offer a convincing rationale for the Union in the modern world (an issue discussed more fully in Chapter 3). Driver 2: Party politics and devolution Asymmetry and the national nature of devolution have further consequences, however. The fact that the debate starts with claims of Scottish or Welsh distinctiveness means that political debate is inevitably couched to some degree in terms of issues of nationality and nationhood. Consequently parties must be able to show that they will stick up strongly for Scotland or Wales – not difficult for nationalist parties (the SNP and Plaid Cymru), but harder for unionist ones that have to balance the interests of such sub-state nations with those of the United Kingdom as a whole. By focusing debate on Scottish or Welsh issues and interests, nationalist parties in each country play a central role in setting the terms of political debate, even if they do not fare well at elections. In that sense, their role might even be described as disproportionate. As the nationalist parties in both countries are clearly on the political left, their existence also shifts the centre of political gravity to the left. Thus, Labour can be outmanoeuvered to the left in Scotland and Wales in a way that it cannot be in England and needs to take account of that in its policy and campaigning. Responding to the local political environment is all the harder when there is an integrated party structure and the policy and campaigning – and organisation, finances and structure – of the sub-state party have to accommodate or even be determined by the party at state-wide level. The Liberal Democrats (with a federal structure) and the Conservatives (whose limited Scottish and

Alan Trench 33

Welsh representation at Westminster means that any electoral gains in those arenas are a bonus) seem to have found solutions to this problem, but Labour has continued to grapple with it. The problem is aggravated by the fact that Labour cannot win Westminster elections without a large number of Scottish or Welsh seats, while the Conservatives are largely an English party and have proved they can win Westminster elections with minimal help from Scotland or Wales. Labour is the only party that is unionist by electoral interest as well as ideology, but has yet to find a way of balancing the multiple considerations that creates. By contrast, the challenge facing nationalist parties is much less. As those parties only operate in Scotland or Wales and cannot hope to win more than a few seats at Westminster, UK elections are second-order elections for them in which their ambitions are necessarily limited. This greatly simplifies issues of electoral strategy. They can send a single message, of seeking the best deal for Scotland or Wales, without having to worry about what effect this might have on voters in England. The difficulties this poses can be seen in other, similarly complex, multinational decentralised systems. In countries like Canada, Belgium and even to a degree Spain, single system-wide party systems have broken down, and different party organisations operate in different jurisdictions. The pressures for UK parties to grant very great latitude to their Scottish and Welsh parts are considerable. Break-up of the parties is a possible response, though unlikely – there are also powerful forces to keep parties together, despite the strains that exist. More likely is increasing organisational autonomy for the Scottish and Welsh branches of parties and greater freedom in policy and campaigning. This will significantly change the nature of the parties even if they remain intact overall. In any case, the combination of electoral and organisational pressures on unionist parties and the ‘environmental’ impact of nationalist parties will reshape politics in Scotland and Wales, whichever parties win office. All parties will need to be both conspicuously ‘Welsh’ or ‘Scottish’ and broadly speaking more left-wing (at least compared with their English counterparts) to succeed. This adds up to a powerful set of reasons for politics in Scotland and Wales developing along lines of greater decentralisation. When nationalist parties gain office, the pressures for differentiation will be all the greater. Driver 3: Territorial and regional differences The next question is what the devolved governments in Scotland or Wales might want to do, and whether that is materially different to what the UK Government might want to do. Part – a large part – of politics in both countries is symbolic, designed to reinforce senses of national distinctiveness or integrity of the ‘national community’. Another important element is the formation or emergence of different ‘policy communities’, with the effect that

34


different groups take part in policy-making and shape the making of public policy. These lead to the emergence of different ‘policy styles’ in Scotland and Wales from those that operate for UK/English matters, with different solutions found even to similar problems (Greer and Jarman 2008). But what also underlies policy-making is differences in the social and economic challenges that each country and its devolved government faces, and what it is about those countries that makes them distinctive. But what underlies that, and drives other aspects of policy making, derives from differences in the social and economic challenges that each country and its devolved government face, and what it is about those countries that makes them distinctive. That in turn creates external pressure to adopt different policies, as the problems to be solved are different. Socio-economic data suggests that Scotland is not all that unlike the United Kingdom as a whole (see Figure 2.1). While its population may be more seriously unhealthy (as shown by the standardised mortality index), other differences are limited. In many respects Scotland is actually pretty much like the United Kingdom as a whole – especially if one allows for the concentration of unemployment, poverty and ill-health to be found in and around Glasgow (which is well-known as a hot spot for such social problems). Wales, on the other hand, is much more unlike the United Kingdom. It is significantly poorer, sicker and less educated. In this case, ill health appears to be chronic rather than acute (the standard mortality index is little worse than the UK average, but the rate of claiming incapacity benefit is much higher- although another possibility is that this is a form of disguised unemployment). Unemployment as such is not significantly different, so the problem would appear to be that jobs in Wales are less skilled and less remunerative than those elsewhere, not that there are particularly fewer of them. A related issue is demography and what population structure suggests both for economic performance and for demands on public services. A particular issue is the age structure of the population. Office of National Statistics data (Office of National Statistics 2008, particularly table 1.2) shows that Scotland has a problem because of the small proportion of younger people (and higher proportion of older ones) in its population. Wales has a large number of older people, largely because it is a place to which many retire. When these trends are projected forward to 2029, however, Scotland will have a much larger older population than the UK average (2.9 per cent greater), and a smaller under-16 population (1.4 per cent less). Wales will have an even lower proportion of young people and nearly as large a proportion of older people as Scotland. In other words, there will be more people of pensionable age and fewer of working age in Scotland or Wales than, proportionately, in the United Kingdom as a whole – and fewer yet to pay the pensions of those still working then. While the direct financial implications of this are for the

Index of per capita GVA (2001)

Unemployment rates % (spring 2005)

Index of standardised mortality rates (2003)

100

4.7

100

6.7∗

Scotland

96

5.9

115

Wales

78

4.5

London

136

6.9†

Outlying English region

79 (North East) 115 (South East)

3.3 (South West) 6.4 (North East)

UK

Index of public sector employment (2005)

Index of proportion of working-age population with degrees (2005)

8.3

100

100

8.8

3.32

117

100

104

10.4

2.66

115

86

97

5.8

24.81†

94

148†

90 (South East and South West) 110 (North East)

Incapacity benefit claimants (as % of working age population) (2006)

4.2 (South East) 9.7 (North East)

Proportion born abroad (2001)∗

2.67 (North East) 7.25 (South East)

87 (South East) 117 (North East)

70 (North East) 116 (South East)

Figure 2.1 Some statistical indicators about differences across the United Kingdom

35

Notes: ‘Outlying English region’ means the highest- and lowest-ranked English regions, other than London ∗ Great Britain, not UK, average † London is the highest-ranking English region for that indicator Sources: Per capita GVA from Office for National Statistics (ONS) 2006a Unemployment rates from ONS 2006b: table 5.13 (using Labour Force Survey data, non-seasonally adjusted, from spring 2006) Standardised mortality rates from ONS 2006b: table 7.4 Incapacity benefit claimants from Department of Social Development Northern Ireland 2006 and Department for Work and Pensions 2006 Public sector employment from ONS 2005: table 5.1 Proportion of working-age population with degrees from ONS 2006b: table 4.10 Proportion born abroad: research by Social and Spatial Inequalities Research Group for IPPR and BBC (see BBC n.d)

36


UK Government to deal with (pensions being a reserved matter), it opens up major questions (discussed in Scotland’s Futures Forum 2007) for what public services should exist and how much they might cost – and for what devolved tax powers might mean if they were granted. However, what is even more noticeable is that neither Scotland nor Wales is generally the most outstanding of UK regions. In fact, London is the most abnormal – hugely wealthier, more educated, more employed in the private sector, but also more ethnically diverse and more unemployed. Moreover, when it comes to ‘negative’ indicators like unemployment, ill health, low income or low levels of education, other English regions (notably the North East) do very badly too – often worse than Wales or Scotland. This reinforces the argument made above about the importance of distinctive sense of national identity in ‘switching on’ territorial politics and in driving devolution as a national phenomenon. While Scotland is substantially similar to the United Kingdom in many respects, it will face issues about maintaining its current prosperity and ensuring greater prosperity in the future. Wales is in many ways much more unlike the average United Kingdom; it is generally poorer and worse off, and faces serious demands in trying to improve its position – with a demographic future in prospect offering challenges similar to those in Scotland.

Outcomes On this basis, it is possible to start to draw some conclusions about the likely trajectories of politics in Scotland and Wales (see Figure 2.2). The grid shows two axes, corresponding to the drivers discussed above, and suggests different forms of sub-national level politics that can result depending on each of those drivers. Each axis, and each quadrant of outcomes, has to be understood as a continuum, but the differences between two systems in the same quadrant either will arise from extraneous factors or be differences of degree rather than of kind. This grid could hypothetically apply in many decentralised or federal systems as well as for Scotland or Wales. What distinguishes Scotland and Wales from England (both as a whole and its various regions) is the fact that they have devolved governments, which itself is best understood as a consequence of being different nations. In the UK context (if not more generally), that characteristic of nationality has ‘switched on’ a process that has not materialised elsewhere despite objective characteristics that might be expected to trigger it. In each case, the differences in party systems mean Scotland and Wales are both below the east-west axis – unlike, say, Australia, where the singleparty system creates a different pattern of political competition and policy demands. This point appears not to have been understood by the Britainwide parties before devolution, and particularly by Labour. They seem to have expected devolution to marginalise nationalist parties, not create new

37

Party system convergence/ similarity • Similar party dynamics, competition and common language with real underlying differences in substantive policy issues • Strong national/central government leadership • Decentralised administration of system-wide policies but limited substantive autonomy (constituent units make similar choices from restricted range of options) • Lopsided, territorially-uneven representation for political parties

• Similar party systems and socio-economic conditions • Parties compete but do similar things in each territory when they win • Limited territorial/regional differentiation: few distinctive problems with little symbolic value • Constituent-unit competition aims to secure advantage at national/federal level • Strong national leadership role with many common policies • Central government takes over regulatory and policy delivery functions in many areas, and manages system-wide financial redistribution Socio-economic similarity

Socio-economic divergence • •

• • •

High levels of divergence in policies, political issues, and visions of the state Few common policies except those imposed by central government using its powers or conditional grants Arguments between levels about appropriate services Substantive debates about powers Issues about resources and redistribution result in real differentiation

• Similar living conditions but different perceptions of what country is for • Strong sense of different regional/constituent-unit identity • Multiple and cross-cutting differences in territorial units • IGR driven by symbolism • Policy transmission and learning possible

Party System decentralisation/ distinctiveness Figure 2.2

Centralising/decentralising dynamics in Scotland and Wales

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arenas which they would shape even when out of government, and that devolution would result in something looking like the more ‘centralising’ upper half of the matrix. However, this analysis strongly suggests that assumptions of devolution leading to a ‘centralising’ approach are simply unrealistic and untenable – even if centralising means returning to the sort of situation that prevailed between 1999 and 2007, rather than recentralising power at Westminster. Such factors as drive that come from the centre, in any case – not from Scotland or Wales. Where Scotland and Wales differ from each other is in the degree by which they differ from the United Kingdom as a whole. On this dimension, Scotland is much closer to UK norms than Wales. This affects how policy issues are likely to develop in each case and the sorts of constitutional implications those will have. A further difference is the much greater development of a separate policy community in Scotland than in Wales. In Scotland this can draw on existing social institutions and professional networks, which are much less present in Wales. The existence of such distinct policy communities makes centralisation all the harder to achieve and reinforces the trend toward divergence or differentiation. The overall outcome puts Scotland somewhere in the south-east quadrant and Wales in the south-west one. This has the effect that Scotland and Wales have different constitutional (and policy) futures and to a degree serve as opposites of each other. These issues are already ones that drive the political and policy agendas in each country; but this suggests that policy issues are more likely to be a material factor in the development of Welsh devolution, because the policy problems there are different to those for the UK Government. In Scotland, different approaches to policy-making reflect different policy communities, and ideology and symbolic politics more than tangible differences – although the role of symbolism suggests that the political impact of such differences as do exist will be magnified. What this implies is that Scotland’s constitutional politics will continue to be contentious and symbol-laden. Discussion of ‘extra powers’ for the Scottish Parliament will continue, with relatively little focus on what those powers would be used for or why they are needed; they are a recognition of Scottish distinctiveness rather than something needed to achieve substantive results. That does not mean that there are not substantive issues. The most pressing are economic and demographic ones. Dealing with these would suggest that the Scottish institutions will seek to give Scotland a competitive advantage (certainly in relation to other parts of the United Kingdom, but on a broader scale too) to attract and retain bright, entrepreneurial young people and to create a business-friendly environment. (Hence, the SNP’s interest in securing lower rates of corporation tax is likely to be maintained, even though EU law means that there are serious legal obstacles to this.2 ) For Scotland, the implication is that the focus is likely to be on maintaining Scottish prosperity and securing that for the future. Scotland is not so

Alan Trench 39

prosperous that it will inevitably seek to resist any form of system-wide redistribution, in contrast to (say) Catalonia in Spain. However, the demographic issues that Scotland faces make maintaining (or improving) prosperity a serious problem. This suggests that the priority given to energy (both oil and gas, and renewables) is unlikely to go away. It would also explain a concern with acquiring greater powers of economic management to improve the business environment. Logical candidates for that would be powers relating to business regulation, personal and corporate tax rates. EU membership means, of course, that Scottish power in these areas would not cut Scotland off from larger markets, whether in the United Kingdom, the European Union or further afield. This would also imply a concern particularly with education and training to ensure that the workforce is as educated and skilled as possible, both to create a better pool of labour for business and perhaps to promote entrepreneurialism as well. To boost the size of the workforce (and address demographic problems too), finding ways of attracting highly-skilled migrants is also an issue. While this is a priority for the United Kingdom as a whole, the issue from a Scottish point of view is to get them to come to Scotland; so preferential visa quotas, ways of allowing overseas graduates from Scottish universities to stay afterward and similar measures are the sort of options short of independence that Scotland can be expected to prioritise. And beyond this, EU issues – and the failure of the UK Government to express Scottish views to the Scottish Government’s satisfaction – are likely to remain a source of tension, for practical reasons as well as symbolic ones. But beyond this, the limited nature of the differences means that Scotland may want to do different things largely because of its sense of itself as a distinct nation and because of different policy communities promoting different approaches to policy – not because the issues it faces are fundamentally different to those in Westminster. As the example of Quebec illustrates, the issues of symbolic politics and recognition as a distinctive nationality have long been at the fore of Canadian constitutional politics, the more so if other issues move off the agenda. In other respects, the trend of an assertive but politically fragmented Scottish Parliament – marked since May 2007 – is likely to continue. The SNP is anathema to the unionist parties, who appear set against entering government with it. The Conservatives are anathema to the other parties, at least when it comes to forming a government (there has been a good deal of co-operation between Conservatives and SNP on particular issues). That means that the present rules of the game permit two government combinations: an SNP minority, or a Labour–Liberal Democrat coalition. That could change, with the Liberal Democrats deciding to enter government with the SNP (though that might not work arithmetically – it would not have delivered a majority in 2007). The greater challenge is the possibility of a ‘grand coalition’ between Labour and SNP, which is impossible at present but might be conceivable if a Conservative government in London

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sought to unpick devolution and centralise power at Westminster, weaken the welfare state or both. In such cases an essentially defensive alliance of the two parties, to protect the Scottish welfare state, might be imaginable; but it would still face huge hurdles, and much mutual hostility within both parties. And if this were to be a possibility, Labour would not be the key party to decide whether it happened; the preconditions are first, a Conservative government in London, second, hostility of that government to Scottish distinctiveness, and third the willingness and need of the SNP to enter such a deal. If the SNP succeeds in building its electoral base or securing some sort of tacit agreement with Conservatives (in Scotland, Westminster or generally), a Labour–SNP alliance would be superfluous – and questions about what Labour actually stands for in Scotland would become more intense. But such tactical considerations suggest that generally parliamentary majorities will be narrow if they exist, and that votes at Holyrood will be tight and often dramatic. Scottish parliamentary democracy is likely to continue to be vibrant, and to involve assertions of Parliament’s power and disputes about what the nature of executive power is and how that is used. It is an irony that the strong parliament envisaged for a devolved Scotland will come into being not because of consensual new politics (as imagined in the 1990s), but because of hard politics and parliamentary arithmetic. Scottish independence is likely to be a recurrent issue, whether or not there is a referendum on that, and regardless of the outcome of any referendum. Achieving independence is hampered by two factors: the procedural and constitutional complexities (discussed in Murkens, Jones and Keating 2002), and the extent to which it continues to lack support from a majority of the population (shown in Scottish Social Attitudes surveys: see Curtice 2008). These issues are discussed further in Chapter 3. The prospect of breakup of the Union is real, if Scotland cannot secure the autonomy it seeks within it. However, it is less clear what impact it would have on everyday life in Scotland; indeed, the SNP’s strategy has been to minimise the differences it would make. SNP’s thinking emphasises such continuities as the Queen remaining head of state, a ‘social union’ with the remainder of the (former) UK, and common agencies providing services under Scottish direction across the former UK. While the effects of Scottish independence for the UK as a whole would be profound, it may be that the difference in the extent of autonomy of being in a separate state and remaining part of a further decentralised UK (which would be the price for remaining in the UK at all) would be modest. For Wales, issues of symbolic differentiation are more contentious. Labour, in particular, remains very divided about the extent to which Welsh politics are concerned first and foremost with Wales, and to what extent Westminster rather than Cardiff Bay remains their focal point. It remains unclear how this will be resolved, but the likelihood has to be in favour of greater decentralisation and an increasingly Cardiff-centred focus for politics and increasing legislative powers for the National Assembly. The Welsh focus of politics in Wales contributes strongly to this. Such a move has support from Plaid Cymru, Liberal Democrats and to a substantial degree Conservatives

Alan Trench 41

in Wales, and from many in Labour. Even many Labour opponents of further devolution may change their views for purely instrumental reasons, if Conservatives win power at Westminster and Labour continues to be in government in Cardiff, as that will offer the best way of protecting social democratic policies and politics in Wales. That may well involve a move to ‘primary legislative powers’ after a referendum, but although the ‘One Wales Agreement’ calls for a referendum by 2011 that may not happen – and even if called, a referendum may not be won. Key to that will be the engagement of the general public in political and constitutional debate, and here the relative isolation of devolved politics from society more generally in Wales will count heavily. The 2006 Act, even more than the 1998 one, was made by a process that involved little public discussion or consultation and minimal press coverage until it actually came into force (Trench 2008). The price of legislating for a constitution in private might be that it simply fails to attract any sort of public interest. Even if a referendum is not held or is lost, however, the Assembly is likely to continue to accrue legislative powers. In this sense, the prediction of parliamentary critics of the 2006 Act may well come to pass, with legislative competence orders or Acts of Parliament extending legislative powers – partly to minimise problems in Westminster from the administrative problems created by the 2006 Act – even if the National Assembly were to remain politically quiescent. As Lord Elis-Thomas, the Assembly’s Presiding Officer, has repeatedly said, such transfers (and indeed disagreements about such transfers) are evidence of the 2006 Act working rather than that it is in trouble. That may involve extension of legislative powers into domains presently retained in London – policing, prisons and criminal justice are contemplated by many advocates of devolution. Institutional logic and the differentiation of Welsh politics from the United Kingdom as a whole means that other changes are also on the cards. The difficulties of increasing Welsh distinctiveness as a result of devolution are already causing serious pressure on the integrated legal jurisdiction of England and Wales. Unpicking that, to create a separate Welsh legal jurisdiction (retaining the existing common law, but enabling greater clarity about the differences that are emerging in Wales), is a highly likely consequence (Jones and Williams 2004). Even with a successful referendum, there will be a need for a Government of Wales Act 2012 or 2013 to resolve other unfinished business from the 2006 Act – notably the number of Assembly members (kept at 60, a number chosen in the mid-1990s largely for arbitrary reasons and clearly inadequate for committee work or effective scrutiny in the Assembly), and the continuing rights of the UK Secretary of State to ‘participate in’ the Assembly and its deliberations. If devolution moves ahead, it will mean a significant degree of change in present arrangements to clarify them and make them work. If it does not move ahead, the alternative will be a high degree of confusion – which government does what, and how government in Wales works. That is unlikely to serve the people of Wales well – or political parties in Wales, for that matter.

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But the bigger question is what the Assembly does with the powers it acquires. Symbolic issues remain important, if contentious, in Wales, and that is unlikely to change. But there are pressing problems for the Assembly to tackle as well – largely problems related to poverty and economic development. These come in many forms, including low rates of business start-ups, low incomes and high rates of claiming incapacity benefit, and they straddle the line between devolved and non-devolved functions as it is presently drawn. Whether the Assembly will find the ambition and imagination to mount a serious attempt to tackle such problems remains to be seen. Aspirations to end child poverty in Wales (on which Labour fought the 2007 election) may be laudable, but the Assembly and Assembly Government lack many of the policy instruments as well as money to do so seriously. Whether Wales will rise to such challenges is one of the major questions for the coming years.

Conclusion This chapter is concerned with the structure of politics in Scotland and Wales more than it is with agency, and particularly the actions of political parties. That structure, rather than contingent events, is likely to determine the overall course of constitutional developments there between now and 2020. And the role of agents – notably the political parties – will be highly important in how that structure develops. What we are likely to see will build both on the views of people in Scotland and Wales as distinct nations, and on the forms of civic nationalism that have developed in each. It will also build on the existing institutions and their powers, the emerging differentiation in policy communities, and perhaps (in Wales) on the nation-building project of nationalists in Plaid Cymru and other parties. But beyond that, there are major differences between the two countries, largely because one is relatively prosperous and quite like the United Kingdom as a whole, whereas the other is poor and unlike the rest of the United Kingdom as a whole. This creates a different set of pressures for policy-making and so for the sorts of powers each might wish to have (and how each would use them), as well as for internal matters.

Notes 1. Under the 2007 ‘One Wales’ coalition agreement between Labour and Plaid Cymru, the All Wales Convention to consider issues relating to the referendum has been set up under the chairmanship of Sir Emyr Jones Parry. 2. EU law treats lower rates of corporation tax in one part of a member state as a form of state aid, needing to be justified in terms of objective circumstances, limited in time and not causing broader distortions in the internal market. See Case C-88/03 Portugal v. Commission (the ‘Azores case’) [2006] CMLR 45.

3 Tying the UK Together? Intergovernmental Relations and the Financial Constitution of the UK Alan Trench

Introduction This chapter is concerned with the overall institutional framework of the UK as far as territorial relationships within it are concerned – in other words, the institutional aspects of relations between Scotland, Wales, England and Northern Ireland and each of these with the UK. Its principal concern is the tangible way this manifests itself, in the financial structure put in place that underpins these relations, and the nature of the choices to be made in the coming years about financial matters. These are already under discussion, with HM Treasury expected to produce a ‘factual paper’ in the summer of 2008 setting out how the Barnett formula works and an examination of the formula by the Scottish Constitutional Commission and a commission to be set up by the Welsh Assembly Government. This chapter will discuss the likely implications over the next 15 years of the possible outcomes of these reviews, as well as broader issues of how the UK works intergovernmentally as devolution becomes more established and has to cope with real political differences between governments. For this discussion, the two axes concern centralisation and peripheralisation, as used elsewhere in this book, and the active or reactive role of the central state (see Figure 3.1). The first is concerned with the extent of power exercised, or exercisable, from the political centre of the UK, from Whitehall and Westminster, and the second, with the extent to which the central state seeks to manage the territorial constitution of the state actively, or takes a passive or reactive approach. It is quite possible to have a centralising but passive state (that would describe the approach of the Thatcher and Major governments, toward Scotland and Wales though not local government for example), or a passively decentralising one (that is to a degree the position the UK has been since 1999). 43

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Centralisation UK 1945–1997

Active central state

Reactive/passive central state UK 1997–2007

Peripheralisation Figure 3.1 The UK before devolution

Starting points There are four starting points for this discussion: the developing nature of politics in Scotland and Wales, and what this means in constitutional terms; the political interests of the various party-political actors; what role the UK as a state now plays in the lives of its peoples; and the importance of financial arrangements in that. These combine to create two axes along which one can understand the question of intergovernmental relations (IGR): one relating to centralising or ‘peripheralising’ trends within the UK state as a whole, and the other relating to whether the UK institutions at the centre take an active role in the management of the UK state or not. Very different consequences follow from each. The constitutional development of Scotland and Wales This has been discussed at length in Chapter 2, and readers are referred back to that discussion. That suggests that both constitutional and ‘ordinary’ political arenas in Scotland and Wales are already distinct, and likely to become more so as time goes – a powerful decentralising force. The territorial interests of the political parties This issue has also been discussed in Chapter 2, as one of the drivers in leading to differentiation of Scottish and Welsh politics from that of the UK as a whole. From a UK-wide perspective, the important point is that, of the parties that can expect to form a Westminster government, only Labour has an electoral interest in safeguarding the future of the Union. The Conservatives may have an ideological interest in the Union, but their votes and seats are

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overwhelmingly from England, not Scotland or Wales; the most they can get from Scotland or Wales is sufficient representation not to appear to be completely alien parties. While Labour needs to win seats in England to form a majority, this is underpinned by being able to rely on substantial number of Scottish and Welsh MPs. For both parties the key battlegrounds – the swing seats, which Labour succeeded in winning in 1997 – are in England, particularly suburban (and mostly southern) England. This has a profound implication for financial systems, as any system of redistribution will have the effect of taking money off marginal swing voters in the prosperous south-east to pay it to parts of the UK that one party relies on (and may take for granted), and in which the other party has only a minimal interest. Constructing a winning electoral coalition in such circumstances is hard; constructing one in which party ideology and electoral interest coincide is harder still. This helps to explain why the Conservatives have been so keen on resolving the West Lothian question by some form of limitation on the ability of Scottish MPs to vote on matters affecting England (see also Chapter 5). This directly serves their political interest, but at a considerable constitutional price – at worst, making the UK as a whole ungovernable, because two different majorities would apply depending on whether legislation was classed as ‘England only’ or ‘UK-wide’. But such a solution raises a broader issue while a mechanism like the Barnett formula is in place. As changes in legislation or policy for England trigger changes in grants for Scotland, Wales and Northern Ireland, those parts of the UK have an interest even in purely ‘English’ matters. Preventing non-English MPs voting on such matters creates a further problem so long as financing decisions for England continue to affect Scotland, Wales and Northern Ireland as well; disentangling the financial system therefore opens the door to resolving that issue as well. What is the United Kingdom for? McLean and MacMillan (2005: 134) distinguish between ‘primordial’ and ‘instrumental’ unionists – primordial unionists being those who regard the Union as a value in and of itself, instrumental unionists being those who regard the Union as good because it has good consequences. Primordial unionism may still have an appeal in Northern Ireland and continue to underpin the pro-Union rhetoric of many UK politicians (for example, the 2007 green paper on The Governance of Britain, Ministry of Justice 2007c; Cameron 2007b). However, it has only ever partially explained the Union, for most of the UK’s history it has not been central to what made the Union work. The Union has also depended on creating shared interests so that it has been able to recruit support from various parts and groups within it. Such interests have included defence and security, trading opportunities and economic interests and (particularly after the Second World War) the welfare state. As McEwen (2002) points out, the welfare state was a common British enterprise that helped cement loyalty to the Union at a popular level.

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However, devolution puts much of this in doubt. The effect of devolution was to fragment responsibility for the welfare state, with distributive functions (health, education, public housing) in the hands of the devolved administrations and redistributive ones (social security) retained by the UK Government. The effect is to fragment any sense of UK social citizenship, and put that in serious doubt (Wincott 2006). While some might argue that the outcome delivers an appropriate degree of autonomy for Scotland to develop a Scottish social citizenship instead, that is necessarily at the expense of a UK citizenship (and makes little sense for Wales either). Moreover, the limited use of formal mechanisms for IGR has meant that on both practical and symbolic levels the UK dimensions of policy-making even in areas like health, education or the environment have been underplayed since 1999 (House of Lords Constitution Committee 2003; Trench 2007, especially chap. 8). The UK has therefore reached the point where the instrumental underpinning of the Union has started to dissipate, and to the extent it remains it does not attract support for the UK. This creates not just a problem in explaining what the UK now does, but also works to drive further decentralisation of it. The importance of financial arrangements Financial arrangements are vital for any successful decentralised or federal system. They act as the glue that keeps the country as a whole together and usually express in tangible form its values of solidarity and autonomy. This is not the place for a detailed discussion of the financing arrangements for devolution in the UK – the block grant and formula system, underpinned by Barnett formula. (For such discussions, the best starting points are Heald and McLeod 2002 and McLean and McMillan 2003.) But there are four salient points about the present system. First, it is a direct carry-over of pre-devolution arrangements, adapted minimally for the new institutional arrangements, but preserved partly to enable a swift and administratively straightforward transition to devolution and partly to protect existing levels of spending, given the political dangers of a needs assessment that would probably reduce spending in Scotland. Second, there are grave disparities in what money is raised and the levels of need of the places where it is spent. Despite a relatively low level of need (now), Scotland does well from the present arrangements; despite a high levels of need, the North East of England, and Wales, do comparatively poorly. It is very hard to justify the Barnett formula mechanism as providing other than a very rough measure of territorial justice, no matter what one thinks justice might be. These are essentially financial problems with the formula, but there are more political problems as well. The third point is that these arrangements lack transparency and legitimacy. We have limited information about what the Barnett formula does, and what there is arcane and hard to find. It is hard to construct a cogent and convincing defence of a mechanism that

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allocates funds on no clear or rational basis and that cannot be explained in any clear way. (Perhaps the Treasury’s ‘factual paper’ will help with this.) This means its main political virtue is either sheer inertia or the fact that it treats Scotland generously and therefore supposedly ties Scotland into the Union, no matter what other consequences arise (though it does not markedly succeed at that either). Fourth, and finally, these arrangements have the effect of making the devolved institutions into not much more than spending agencies. They may have extensive scope to make and implement policy and deliver services, and their own electoral base, but the lack of financial responsibility and fiscal power means that they are not proper governments with the range of powers and responsibilities that such governments would normally have. Indeed, to make these arrangements work, the devolved administrations are closely integrated into the financial (and to a degree administrative) machinery of UK Government (Heald and MacLeod 2005). None of this should be taken as suggesting that the existing arrangements do not have some real virtues. Notable among these are the predictability and stability of funding that the Barnett system provides and its administrative simplicity. But these virtues can be obtained from other systems as well; they are incidental virtues of Barnett, not inherent ones.

Financial arrangements in decentralised states In this context, it is worth looking at how other decentralised or federal systems are funded. (The literature on fiscal federalism is vast, but Shah 2007 is a comprehensive and up-to-date comparative introduction.) Most constituentunit (state or regional) governments (in Canada, the US or Switzerland, for example) have access to their own sources of tax revenue. One option is to allow constituent units to use their own taxes to fund their own services. If they cannot raise the funds, they cannot provide the services. This can lead to huge disparities between poor and rich regions, which undermines any sense of collective solidarity. It also limits the power of the central state to shape what constituent governments do and creates little tangible manifestation of the state as a whole at all. In addition, central states usually have access to a wider range of more lucrative taxes than constituent units and lower spending commitments in relation to their taxing powers, which can create a vertical fiscal imbalance between the two levels or orders of government. One answer to a vertical fiscal imbalance is for the central state to make grants to constituent units. This gives resources to the constituent units and may serve as a way of limiting disparities between regions. A key issue is whether the grants are conditional or not – conditional grants give the central state very considerable power to shape what the constituent units do, in a way that unconditional grants do not. Examples include the sorts of

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tied grants given to fund highway development in the US or universities in Australia, which effectively give the central state control of an area of policy for which it has no formal constitutional responsibility. Even what are effectively unconditional grants – like the Canada Social Transfer – give the central state a considerable degree of leverage, however, as they target and promote some areas of policy at the expense of others, even if they do not specify what the constituent unit is to do with the money received. Similar considerations apply where the revenues of specific taxes are assigned or hypothecated to particular governments; this gives governments an interest in increasing the revenue such a tax source generates for them, even if they cannot control the rate as well. Thus, if VAT revenues are assigned, it gives a government responsible for planning an interest in increasing retailing space, so the tax revenue it can receive increases as a result. However, specific grants are a blunt instrument, particularly for redressing horizontal inequalities between constituent units. Equalisation mechanisms can compensate for several sorts of inequalities: for differing costs in providing public services, for differing levels of demand for services, or for differences in the revenues available from own resources to provide services. (The Australian system is concerned with all three, while the Canadian system focuses on the last.) Equalisation systems are rooted in a notion of there being some form of cross-system solidarity that needs to be manifested despite significant inequalities between constituent units, and uses a vertical imbalance to remedy those horizontal disparities.1 The grants they involve are unspecific and unconditional, and by their nature are formula-based. Thus, there are four basic instruments available to allocate finance in decentralised or federal systems. These are own sources of tax revenue, conditional grants from the central government to constituent units, unconditional grants from central government to constituent units and equalisation systems. Each has very different effects and implications not just financially and economically but politically as well. One can construct a grid indicating how these sorts of grants relate to the axes discussed above, of centralisation versus peripheralisation and an active versus reactive central state. That would look something like Figure 3.2. In reality, these are ideal types, and no one system corresponds particularly closely to these models. The US combines conditional grants with own-tax revenues, Australia relies heavily on equalisation with conditional grants, while Canada makes greater use of unconditional grants and own-tax revenues along with equalisation systems. Germany relies almost exclusively on a horizontal equalisation system. These financial mechanisms do not in themselves explain the degree of centralisation or peripheralisation in the system as a whole, but they are important elements of that as well as shaping the quality of social citizenship in a state. The UK’s Barnett formula is an anomaly when put into this framework. Because it accounts for practically all devolved administration spending,

Alan Trench 49

Centralisation Unconditional grants, including assigned tax revenues (without control of tax rates)

Conditional grants

Active central state

Reactive/passive central state Own tax revenues

Equalisation mechanisms

Peripheralisation Figure 3.2

Instruments for financial allocation in federal systems

the sort of mix of approaches common in most decentralised systems does not exist, and the UK runs with a remarkably large unconditional grant. It therefore sits very clearly in the north-east quadrant. That probably was well-suited for its former use in a relatively centralised state that did not wish or need actively to manage those to whom it was given, because a single government was responsible for major spending decisions and this served simply to allocate finance in a way that minimised administrative friction rather than serving broader political goals.2 Ministerial statements imply that its rationale is a rough sort of equalisation, but that is neither very clearly set out nor achieved very effectively. And it can be contrasted with the other ways that funding is allocated territorially in England, to local government and the NHS.3 In each case, the grant is calculated using a formula that is needs-based (meaning it serves as a form of equalisation), but also highly conditional (in practice if not in form). Thus, in these spheres, for England the UK Government has adopted an approach that is pretty centralising and reflects a high degree of state activism – but not for the devolved administrations.

Territorial constitutional futures for the United Kingdom At this point, it is perhaps appropriate to examine in more detail the two axes identified at the outset of this chapter (see Figure 3.3). The centralisation/ peripheralisation axis reflects a variety of factors that strengthen the authority of the central state in relation to devolved governments, other public bodies or individuals. It is hard to see how the UK Government could seek to roll back what is already an extensive handing-over of power to the devolved institutions; what has already passed, and what the public at large understand to have passed, is considerable and has a dynamic impact of its own.

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Centralisation • UK tries to treat 1998/2006 legislation as definitive – reluctant to cede further autonomy • Little or no fiscal autonomy UK sets financial parameters, probably through imposing a unilateral needs assessment • IGR formal and limited: few meetings, especially at summit level • Nationalist parties’ room for manoeuvre in office limited, but seek to build support against UK Government for their positions • Territorial issues become constitutional in nature (debates about independence, powers and so on) and highly contested

• UK treats 1998/2006 legislation as definitive, but exercise of existing functions leads to uncontrolled policy divergence • Devolved territories better organised in IGR so can pick off soft UK targets • UK’s attempts to maintain unity by emphasising ‘Britishness’ sound hollow • Finance system drifts on: Barnett survives with bypasses for Wales and perhaps blind eye to attempts to raise revenue • UK lets nationalist parties go their own way rather than maintain the UK

Activist UK approach

Reactive/passive UK approach

• UK embraces continuing process of devolution – willing to discuss further transfers of functions • Develops clear approach to what UK is for (economics, defence and security, diplomacy) at a minimum • Consults devolved administrations about key actions affecting them • Refurbished JMC meets regularly on functional and plenary levels • Attempts to ensure equity and autonomy result in complicated financial mechanisms

• Fissiparous tendencies continue: UK attempts to rein in devolved territories become harder and fuels tensions. Discussions hard for UK to manage • Attempts to work out what devolution ‘means’ become more formalised and perhaps legalised • Finance put on back burner or issues resolved ad hoc, but money remains a source of friction • Failure to address issues of policy coordination, finance and symbolism of UK state • Willingness for Scotland and Wales to consider independence, for Northern Ireland to consider extensive links with Republic

Peripheralisation Figure 3.3 Centralising/decentralising dynamics in regional and federal systems

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Attempts to do so would be likely to provoke a severe backlash and lead to greater devolved autonomy, not less. Thus, on this axis, ‘centralising’ means maintenance of the status quo rather than a dramatic change in it. The horizontal axis is concerned with whether the UK centrally chooses actively to manage its territorial politics, or instead continues to engage with these issues minimally, reactively, bilaterally and unstrategically. This sort of ad hoc approach has been manageable up to now, largely thanks to a substantial degree of political consensus between all three British governments and the work of civil servants to co-ordinate policy in such a situation (discussed in detail in Trench 2007). Active management of the Union implies a very different sort of approach, which would embrace a different approach to financial arrangements and other changes as well. These would probably include: • Taking a strategic view of what the state as a whole is for, and what is the role of the constituent units and their institutions. That implies a ‘mission statement’ suggesting what each level of government does and why, a clear connection between that statement and the division of powers (which may imply adjusting the division of powers as well). • A more multi-lateral rather than bilateral approach to intergovernmental issues. • A different way of conducting IGR procedurally: more formal liaison, at all levels. While the high-level political meetings (meetings of heads of government – the UK Prime Minister and devolved First Ministers) are important, more important are links between ministers with functional responsibilities and their officials. • A different approach to managing territorial issues in Whitehall, so that issues of the division of powers are reflected in organisational structures and taken into account as a matter of routine in all policy-making. In the absence of such an approach, in circumstances where Scotland and Wales are developing in increasingly different ways and there is no clear rationale for the Union that explains what it does and what other levels of government do, whether in ideological, policy or financial terms, the challenges that the long-term survival of the UK faces are serious. There develop real possibilities of break-up, either as a result of a lack of energy and understanding, or because the insistence on formal matters (the impossibility of altering the Union) undermines public support for it in Scotland (and perhaps Wales), leading to a crisis of legitimacy.

Restructuring the intergovernmental finance system Restructuring the system of intergovernmental finance has been an issue inherent in many debates about devolution since 1997. It has seldom been at

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the forefront of them, for reasons including the generous growth in devolved budgets following the growth in general public spending under the new Labour government, and the clear reluctance of UK Government to consider alternatives. However, each of the new devolved governments that took office in 2007 challenges different aspects of it. Northern Ireland has sought freedom to set (reduce) corporation tax, following the example of very low rates set in the Republic of Ireland, which the UK Treasury has rejected. In Scotland the Scottish National Party (SNP) government seeks ‘fiscal autonomy’, and in its white paper Choosing Scotland’s Future sets out proposals for this (Scottish Executive 2007). This demand was echoed by calls for ‘fiscal federalism’ from Labour and the Liberal Democrats (in reality, probably a mixed system – see, for example, Alexander 2007), and this issue is to be considered by the Calman commission during 2008–2009 before being kicked back to the UK Government. In Wales the ‘One Wales’ coalition agreement provides for a commission to review all aspects of Assembly finance including taxing and borrowing powers, not just financial needs, although that had still not be set up by May 2008. The cumulative pressures to establish different arrangements are highly likely to result in some change over the coming decade and a half; the key question is what sort of changes these produce. A system for the UK is likely to include a mix of several tax sources. An active UK will seek to ensure that all parts of the UK have material interests in remaining part of the state, while also ensuring that those parts asserting claims to fiscal or financial autonomy have some degree of that. That suggests that key sources will be own tax revenues, plus some sort of payments from the centre. The major decisions to be made concern what sort of payments those are and how much each element constitutes of the whole. Party ideology may play a major part in this. For Conservatives, who accept the role of the free market, the logical position would be to emphasise taxraising powers, and the autonomy and responsibility that go with that, so that devolved administrations are accountable to their own electorates for what they do and how they spend money. For Labour, with a greater commitment to UK-wide solidarity, conditional grants that require certain levels of welfare provision or prohibit certain sorts of provision might be attractive; so a conditional grant could be used to safeguard the principles of an NHS providing universal services free at the point of use. Equalisation mechanisms are interesting in this context. They can serve the cause of either position. As, typically, most or all constituent units get some payment from such a mechanism, they express (admittedly in differing degrees) a system-wide form of solidarity. However, they also give governments a high degree of autonomy and, as they are seldom the sole source of revenue for constituent units, also mean that there are real incentives to reduce expenditure rather than maximise it. In some ways, Barnett is the worst of all worlds: ineffective as a form of equalisation, and giving incentives to spend, not to save or invest. A free-market approach to devolution finance would seek to re-arrange incentives so that reducing spending

Alan Trench 53

and investing in capital projects were at least as attractive for the devolved administrations as spending, while keeping them within the Union. This flexible instrument of policy would therefore form a key part of any sensible reconstruction of devolution finance, no matter which party is in charge. However, it creates the problem of undertaking a needs assessment, a demanding administrative exercise, which will be followed by a difficult set of political decisions when it comes to be implemented. The saving grace is perhaps that even those painful adjustments would need to be cushioned by a transitional period, as finance moved from one system to the other – necessary to minimise the impact of the different system, if nothing else.

Outcomes This discussion suggests that scenarios with the UK Government remaining passive or reactive in managing the territory of the UK create serious problems. If it were to remain passive and peripheralising trends continue or are accentuated, the UK would start to fragment. Scottish and Welsh autonomy would become more extensive, in a haphazard, bilateral sort of way; the failure of the UK to offer any meaningful sort of response would lead to slow fragmentation of the UK and public confusion about the role of the state, and possibly formal independence for Scotland and Wales. (Equally, advocates of independence might consider that they already had so much of what they wanted that formal independence would involve too much work for too little reward.) A passive but centralising UK would be little better, as this would imply fitful attempts to ‘rein in’ Scotland, Wales and Northern Ireland, but again with no coherent thread or framework to explain what the UK did and what was the role of the devolved administrations. This approach would be likely to lead to greater intergovernmental strife and dispute in which the devolved administrations would be able to win much of public debate in their parts of the UK – so the legitimacy of the UK institutions in those parts of the country would be challenged. Being able to point to the institutional obstacles to independence (discussed in Murkens, Jones and Keating 2002) will serve little purpose, as it would be impossible to relate such formal rules to the ways that people understand the world or governments actually act. Again, independence and break-up would become a real possibility. An active, centralising UK might run similar hazards, of encountering real opposition from the devolved institutions, which gains popular support and which would not be helped by insisting on formal rules. The devolution legislation is widely accepted by public and devolved governments as a work in progress and only works in practice because of the degree of flexibility built into it. Insisting on sticking to the letter of the legislation would lead to serious problems in policy-making – and also undermine UK legitimacy, by emphasising the lack of clarity about what devolution ‘means’ and the

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problems of enforcing the general public’s understanding of what it means. It would also fail to end debate about independence or other measures short of that, if that were intended by the UK Government. If it were to succeed in demonstrating a clearer rationale for the UK and lead to a more straightforward settlement, it might be able to avoid non-essential disputes about incidental issues arising out of the institutional framework of devolution, rather than ones over important issues of policy or principle. But disputes would continue. An active but peripheralising UK would offer the prospect of a much clearer rationale for what the UK does, and of reconciling what the public in Scotland and Wales seem to want (a ‘stronger voice’ in the Union, national recognition and the ability to do things differently, but continued membership of the Union – for details see Curtice 2005; Wyn Jones and Scully 2008) with strategic UK interests and the basic framework of a Union state. It would mean accepting that the logic of devolution is to extend devolved powers, but find a way of embracing that and making a virtue out of the inevitable. It would also offer mechanisms to manage differences effectively, as well as limiting the scope of disagreements and disputes arising from such differences. In that respect, it is the most attractive of the scenarios on offer. None of this would mean that the UK becomes a federal system. Such changes can be delivered within the framework of a Union state, with a single Parliament responsible for both Union-wide and England-only matters. But it does mean becoming clearer about the distinction between the two, rather than treating Scotland, Wales or Northern Ireland as essentially appendages of England whose interests must be fitted around England’s rather than accorded priority in their own right. Anomalies such as the West Lothian question will remain, but their impact can be reduced by such institutional changes.

Conclusion: Britain’s devolved constitutional futures The full impact of the devolution enacted in 1998 has still not been felt, or indeed properly understood – especially at UK level. The UK now faces a clear dilemma between two sets of futures. In one, the UK decides that territorial management is a priority, and it devotes considerable effort to that. The effort involved will be considerable, entailing the exercise of a good degree of imagination, systematic joined-up thinking across government to formulate such ideas and sustained and systematic action, again across government, to apply those ideas and practices. To be properly effective, that needs to be done on a consistent basis: a patchwork quilt where some areas of activity (and some departments) do one thing, and others do something quite different, will be little better than making no effort at all. In the other set of futures, the UK makes no such effort, but continues to be passive or reactive. The present inconsistency prevails, and the lack

Alan Trench 55

of imagination means that the status quo is generally regarded as the only alternative to the break-up of the UK. This suits political nationalists and those who are frightened of change equally, but is not in the UK’s long-term interests – and it is not really a sustainable option either. What is also striking is that these futures are not particularly contingent on which combination of parties hold office. It is possible to conceive of forms of an ‘active state’ adopted by both Labour and Conservative parties, and consistent with the ideologies of each (though perhaps less so with their electoral interests). Equally, it is possible to conceive of forms of the ‘reactive state’ being pursued by each (indeed, that is what both have been doing for some years). While some party combinations would provoke more extreme responses than others, what is more important is whether a UK Government chooses to be active or not – and how thoughtful and coherent its position is – not its party ideology. What is essential, however, is a willingness to accept that the UK’s national diversity exists and now takes an institutional form; the unified UK that both Aneurin Bevan and Margaret Thatcher sought to govern no longer exists, if it ever did. For such 20th-century politicians, determination and will were essential qualities. That is no longer the case. Accepting the new reality, and exercising intelligence and imagination in dealing with that, are the qualities a 21st-century politician needs.

Notes 1. Germany is an interesting case here, as most taxes (including VAT and personal income tax) are collected by Länder governments, not the federal government, and are redistributed using an equalisation mechanism – but from richer Länder to poorer ones horizontally and directly, not through the federal government. Thus the richer Länder like Bavaria have to remit funds to the poorer ones like Sachsen-Anhalt. 2. In fact, before devolution, Barnett could be by-passed relatively easily if there were strong political reasons to do so, and that happened relatively often. With devolution, the formula has to be applied more rigidly. 3. Similar formulae are applied also in Scotland and Wales, by the devolved administrations.

4 Northern Ireland: Polarisation or Normalisation? Robin Wilson and Rick Wilford

Recent trends After almost 55 months in abeyance, devolution was finally restored to Northern Ireland in May 2007.1 Its prior operation had been fitful: though the Belfast Agreement (Northern Ireland Office 1998) preceded the Scotland and Wales Acts, the impasse over decommissioning of IRA weapons had prevented the Stormont executive being ‘up and running’ until December 1999, and there had been repeated subsequent suspensions before its eventual collapse in October 2002. Yet it was clear that devolution had, to employ Peter Mandelson’s phrase, become the only show in town – remarkably so, at first sight, since it does not fulfil the conventional nationalist ideal of a united Ireland, and many unionists preferred renewed direct rule from Westminster to the political trauma of sharing power with Sinn Féin.2 It had become, and will remain, so essentially because of external factors. From the settlement of 1920–1922, when devolution was imposed on Northern Ireland despite the opposition in (Protestant) ‘Ulster’ to home rule, it was evident there was a strong desire in London to insulate itself from the ever-troubled region (Bew, Paterson and Teague 1997: 15) – a stance reflected half a century later in the desire to avoid direct rule if at all possible and, from 1972, to end it almost as soon as it began. Yet after the election of the Labour government in 1997, the advent of what would earlier in the century have been called ‘home rule all round’ pulled the rug from under the unionist objection that devolution set Northern Ireland apart from the rest of the United Kingdom. More subtly, the emergence of coalition governments in Scotland and Wales, under conditions of proportional representation, was to undermine the winner-takes-all, Westminster Model of government. This was the model unionists had enduringly endorsed as a means of resisting pressures for constitutional power-sharing with representatives of the Catholic community. 56

Robin Wilson and Rick Wilford 57

Unionists could, and many did, complain that they were being driven to accept power-sharing arrangements at the point of an IRA Armalite while the Republic of Ireland maintained an irredentist territorial claim over the north, making them fearful that north–south co-operation represented a ‘slippery slope’. The eventual ending of the IRA campaign, allied to the decommissioning of arms, in 2005 and Sinn Féin’s (SF) acceptance of the rule of law in January 2007 – in an international context following ‘September 11’ in which significant American support for Irish paramilitarism was unlikely ever to be forthcoming again – removed the first obstacle. The withdrawal of the Republic’s territorial claim in the wake of the Belfast Agreement had removed the second obstacle, allied importantly to a steady decline over recent decades in the power of the once-dominant Catholic Church (Ferriter 2004). Up to a few weeks before the Agreement, Sinn Féin had been in denial about any form of assembly for Northern Ireland. Meanwhile, the Democratic Unionist Party (DUP) had boycotted the talks from the moment SF joined them in September 1997 to the end, and then campaigned against the Agreement in the subsequent referendum. Yet by 2007 the two parties were in government together. Miracles don’t happen in politics any more than in other aspects of real life. The DUP is primarily a vehicle for the maintenance of such Protestant ethnic power as can be held in circumstances more straitened than before the abolition of the unionist ancien régime, while SF is an ethno-nationalist organisation run on Leninist command principles, far removed from the original secular goals of Irish republicanism. But each has been obliged to accommodate to the reality of sharing power, albeit not on entirely co-equal terms.3 SF did so shortly before two wheels came off its united-Ireland wagon. The ‘peace strategy’ devised by the long-time party leader Gerry Adams had evolved into a replacement of the impossibilist goal of securing a ‘British withdrawal’ in one go with a phased approach, in which access to power, though shared, would be secured in both Irish jurisdictions, as a prelude to achieving a united Ireland before the centenary of the 1916 rising. A dismal showing by SF in the Dáil election held a little more than a fortnight after the 2007 restoration of devolution, in which it was reduced from 5 to 4 of the 166 seats, indicated the party’s enduring lack of appeal in more settled times (Hennessy 2007) – though it could profit from the impact of an economic downturn, which would bear heavily on its areas of core support. The DUP’s motives for supping via a long spoon with the republican devil – as the party’s only-ever leader, Rev. Ian Paisley, might for decades have described it – were complex. On the one hand, the repeated threat by exasperated ministers in London and Dublin that, were devolution not to be renewed before various (in practice flexible) deadlines, they would introduce a new, unstated form of ‘joint stewardship’ rattled the sometime

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firebrand (Thornton 2007). On the other hand, he did conclude, with an air of sectarian condescension, that the IRA had accepted defeat and therefore power-sharing with SF no longer conjured up the terrorist demon. What was absent as a motive underlying the acceptance by both parties of power-sharing devolution – an option available to both at any point since 1972, a full quarter century and some 3000 fruitless deaths previously – was any sense of responsibility for the victims of Northern Ireland’s intervening violence and so any magnanimity towards the ‘other side’. There are, occasionally, magnanimous figures who emerge as leaders of societies emerging from ethnic conflict: Boris Trajkovski in Macedonia (on which more later) was one. But neither of the Northern Ireland leaders has shown any interest in the historical revisionism essential if a shared political narrative is ever to emerge.

Drivers of change Centrifugal versus centripetal tendencies There will be virtually no centripetal forces vis-à-vis Northern Ireland to pull it in a centralising direction. A unionist stance on the region, which did have a significant residual presence in the Conservative party in the not too distant past, in figures like Airey Neave and Ian Gow, has not had a purchase at Westminster for many years – as evidenced by the sea of empty green benches in the Commons during Northern Ireland debates. Though the defection of Lord Trimble to the Tories represents a modest counterinfluence, there has been an underlying, decades-long, cultural dislocation between the social world of Protestant, church-going tradition in Northern Ireland and an increasingly multi-cultural and secular Britain. The Anglo–Irish Agreement of 1985 signified that dislocation in political terms, leading as it did to the breaking of the Conservative–UUP (Ulster Unionist Party) tie. The separate party system in Northern Ireland means no party feels any pressure to follow the Westminster government line, whoever is in office. And, ever since partition, Northern Ireland has had the separate civil service the Scottish first minister, Alex Salmond, seeks, leading to an atrophy of personnel exchanges with other parts of the system (outside of the Northern Ireland Office) (House of Lords Constitution Committee 2003: para. 159). There will also be centrifugal pressures arising from the presence of nationalist parties in government in Scotland and Wales as well those in Northern Ireland – where their presence, alongside their unionist opponents, is guaranteed by the process of executive formation by the mechanistic d’Hondt proportionality rule. Shortly after his election as Scottish first minister, Mr Salmond visited Stormont to meet the first minister and deputy first minister, Mr Paisley and Martin McGuinness (of SF) respectively, with an apparent eye to cultivating a kind of ‘Celtic’ axis of the periphery. And


these centrifugal forces were in evidence in the suggestion, at the first meeting after the transfer of power to Stormont of the British–Irish Council (BIC), originally established as a result of the Belfast agreement, that the BIC should have a free-standing secretariat (British–Irish Council 2007). Previously this function had been controlled by London and Dublin, with the result that the BIC had met only roughly annually in plenary format. The North/South Ministerial Council (NSMC), the vehicle for co-operation within Ireland – also arising from the 1998 Agreement and to which unionists had sought the BIC as a counterweight – will be a further factor acting to weaken the focus on London. In the St Andrews Agreement of October 2006 laying the groundwork for the renewal of devolution, a review was promised of the north–south dimension. While the Belfast Agreement provided for extensive policy co-operation, only six areas were to be subjected to executive decision-making via joint ‘implementation bodies’ accountable to the NSMC. There will be nationalist arguments for extending that list, which was the result of the filleting of much more extensive proposals at the behest of the then unionist leader Mr Trimble in the days between the presentation of a British–Irish draft agreement and the conclusion on Good Friday in 1998. The dramatic economic growth in the Republic from the mid-1990s to the mid-2000s has created an alternative pole of attraction and allowed the Republic to shower some of its newfound affluence on the north – via, for example, the funding of cross-border roads to the tune of £400 million in its National Development Plan (2007). The environment, transport, energy, spatial planning, culture and the arts are all areas where all-Ireland strategic approaches have an appeal – and not just to nationalists (Co-operation Ireland 2007). These centrifugal pressures could be mutually reinforcing: a referendum on Scottish independence would raise nationalist pressure for a referendum on Irish unification in Northern Ireland. And if the process were to lead to eventual Scottish secession, Northern Ireland’s de jure constitutional position as part of the United Kingdom would look increasingly anomalous. Polarisation versus normalisation Shortly after the devolution of power it emerged that a new ‘peace wall’ was to be built in north Belfast, where several hundred people died during the ‘troubles’. The 25-foot high fence was to be erected, of all places, on land used for an integrated primary school playground – against the school’s express wishes. It had earlier emerged in a parliamentary answer that there were now 46 officially recognised ‘peace walls’ across Northern Ireland (Lister 2007). Since the paramilitary ceasefires of 1994, nine new barriers have been built in Belfast and eleven strengthened or extended (Jarman 2006: 5). A 2004 survey of 9000 households living close to the ‘interfaces’ in north and west

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Belfast found that two-thirds felt ‘community relations’ had deteriorated (Shirlow and Murtagh 2006: 92). These interface areas are heartlands of support for the DUP and SF, whose electoral strength has advanced in lockstep since the outset of the ‘peace process’, focused as that has been on institutionalising – and so once more insulating – the Northern Ireland conflict, rather than on any more normative process of reconciliation (Wilford and Wilson 2006). The table in Figure 4.1 indicates the sustained electoral trend, which shows no sign of being reversed. Discussion of Northern Ireland, as with other ethnic trouble-spots, can however lead to an ‘over-ethnicised’ (Brubaker 2002) view of the world. Polarisation has not been the only trend: it has been accompanied by falling electoral registration and turnout in recent years and indications from attitude surveys of public disengagement from politics (Electoral Commission 2004b). The Northern Ireland Life and Times Survey recurrently finds that a representative sample of opinion in the region is somewhat more ‘moderate’ than electoral outcomes suggest, implying differential turnout on the part of the communalist ‘true believers’. The fall in electoral participation on the part of those who reject a self-definition as ‘unionist’ or ‘nationalist’ is particularly marked (Electoral Commission 2005: 102). Nor is Northern Ireland cocooned from the rest of the United Kingdom or, more importantly, the rest of the world. It is exposed to global media and internet influences and members of the professional strata will be linked into social networks across the island of Ireland, the United Kingdom or both. In recent years, particularly since the accession of central and eastern European countries to the EU, it has seen significant immigration. Indeed, in 2005–2006 inward migration, of almost 10,000 people, for the

UUP

DUP

Election

Votes (%)

Seats

1998

172,225 (21.3)

28

2003

156,931 (22.7)

2007

103,145 (14.9)

Votes (%)

SDLP

SF

Seats

Votes (%)

Seats

Votes (%)

Seats

145,917 (18.0)

20

177,963 (21.9)

24

142,858 (17.6)

18

27∗

177,944 (25.7)

30

117,547 (16.9)

18

162,758 (23.5)

24

18

207,721 (30.1)

36

105,164 (15.2)

16

180,573 (26.2)

28

Figure 4.1 Northern Ireland Assembly election results for the four major parties ∗ Following

the election (in November 2003), three of the UUP’s MLAs defected to the DUP in January 2004, thereby increasing the seat differential between them to nine. The Assembly did not, however, convene, and had only a virtual existence


first time exceeded natural growth as the principal cause of population increase (Department of Finance and Personnel 2007). All these trends have tended to bring about an incremental social modernisation, and even a degree of ‘cosmopolitanisation’, which further in-migration can only enhance. Moreover, while the incidence of politically motivated violence in Northern Ireland did creep back up after the 1994 ceasefires, and rose further in the years following the Belfast Agreement, it has never threatened to return to the levels prevailing before the huge peace marches of 1993. And since 2002 – ironically, the year when the post-agreement institutions collapsed – a downward secular trend has resumed, with ‘loyalist’ paramilitarism gradually following its ‘republican’ antagonist into the dustbin of history, as the police statistics in Figure 4.2 show. While the trend in violence has thus borne little correspondence with macro-political events, it can be related to the growing legitimacy of the Police Service of Northern Ireland: as Max Weber famously argued, the state is defined by the exercise of a monopoly of legitimate force. Because the parties to the Belfast Agreement had been unable to agree on policing – since they did not agree on the legitimacy of the state – they handed the issue to an independent commission (Independent Commission on Policing 1999). The Patten report, as it became known, founded the ‘new beginning’ for policing it was charged with identifying in universal human-rights norms. This ensured that over time the reconstituted Royal Ulster Constabulary,

400 350 300 250 200 150 100 50

Shootings Figure 4.2

Shootings and bombings 1995–2007

Source: Police Service of Northern Ireland 2008

Bombings

2006–07

2005–06

2004–05

2003–04

2002–03

2001–02

2000–01

1999–00

1998–99

1997–98

1996–97

1995–96

0

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now the Police Service of Northern Ireland, would provide a magnet of impartial authority. This proved strong enough to attract into its orbit, in 2007, the political representatives of the IRA and further to delegitimise – as mere organised crime – the looser ‘loyalist’ paramilitary networks. It may help here to borrow the Gramscian terminology of ‘political society’ and ‘civil society’ (Hoare and Nowell Smith 1971). The growing dominance of the former in recent years by sectarian and nationalistic politicians – for which the former Northern Ireland deputy first minister Séamus Mallon excoriated Mr Blair (see Bowcott 2007) – has been associated with polarisation and entrenched division. Within civil society, however, the prevalence of quotidian concerns, the frequent irrelevance of sectarian considerations and the potential of overlapping social and professional solidarities and commitments tend to favour normalisation. The outworking of these conflicting forces is mediated by social class. Northern Ireland also shared in the huge increase in social inequality during the Thatcher years, which remains largely untouched after the Major and Blair premierships (Dixon and Paxton 2005; Kenway et al. 2006). There is a gulf in Belfast between the severely disadvantaged north and west and inner city and the more prosperous east and more cosmopolitan south. The ‘peace walls’ are contained in the former areas, whereas in the latter life, particularly with the removal of the army presence from the streets in recent years, is similar to that in any other UK, or Irish, city. A particularly stark example during the March 2007 Assembly election was how a Chinese candidate, Anna Lo, won a seat in South Belfast – becoming thereby the only Chinese parliamentarian in Europe.

Constraints on change The centrifugal tendencies identified above might be thought decisive forces, in favour of a much looser relationship between London and Belfast, and a correspondingly closer one between Belfast and Dublin. But this could be a superficial reading, for three reasons. First is the constraint placed on Stormont’s autonomy by the fact that macro-economic policy remains reserved to Westminster, and Northern Ireland’s poor ‘fiscal effort’ (Heald 2003) makes it hugely dependent on the ‘Westminster subvention’, which accounts for more than 40 per cent of all public spending in the region. The lack of values in Northern Ireland politics and the lack of responsibility of the region’s politicians for its fiscal performance have encouraged a populist and oppositional political culture, manifested in the 2007 Assembly election as universal hostility among the parties to the introduction of water charges. As part of a further ‘peace dividend’ extracted from the Treasury by the rent-seeking Northern Ireland parties in the run-up to renewed devolution, the introduction of water charges was deferred, but this was only putting


off the inevitable. Peace and a succession of scathing reports from the Public Accounts Committee at Westminster have led to what an official source from Northern Ireland described as ‘a Westminster-wide weariness with us’ (Gordon 2005), and Treasury pressure for the region’s fiscal effort to improve is unlikely to let up. The long-anticipated convergence effect of the Barnett formula has now been manifest, particularly for Northern Ireland, which has seen its differential in expenditure per head markedly reduced with regard to the UK average (see HM Treasury 2007a). And if that effect eases in the years ahead, it will only be because the period of rapid public-expenditure growth is over for the foreseeable future – which will not be much consolation to Peter Robinson, the Minister of Finance and Personnel at Stormont. The pressures this placed against divergence were immediately evident upon the restoration of devolution. An early debate at Stormont was on a proposal to copy the Scottish provision for free long-term care for the elderly. The proposal was endorsed by a number of new executive members, including the Health Minister, Michael McGimpsey, much to the chagrin of Mr Robinson. He upbraided his colleagues for eschewing so quickly their erstwhile commitment to stick with the budget inherited from the direct-rule administration for the 2007–2008 financial year. The evidence of the prior devolved administration, moreover, suggests that the autonomy enjoyed by Stormont – similar to that in Scotland, except as yet on policing and justice, and in theory extending to social security – will by no means be fully utilised. With the left–right political axis overshadowed by sectarianism, there is no pressure in Northern Ireland to put ‘clear red water’ between the devolved executive and Westminster – even though the region is marked by the very social exclusion, particularly in terms of poor employment and poor wages, which would justify such a stance. There was little by way of policy innovation during devolution in 1999– 2002.4 Indeed, interviews with former ministers by one of the authors indicated a remarkably cavalier attitude to the Programme for Government, the focus of efforts to ‘make a difference’ by comparison with direct rule. Moreover, while direct-rule ministers were loath to introduce new policies prior to the Belfast Agreement, after the collapse of the institutions it bequeathed in 2002, a ministerial activism became evident. The most notable example was the 2005 policy framework to improve ‘community relations’ – a nettle which the devolved administration had failed to grasp. The early months of renewed devolution saw a more sedate pace restored. A Shared Future (Office of the First Minister and Deputy First Minister 2005), an embarrassing implied critique of the parties’ sectarian clientilism, was sidelined. The review of public administration, set in train shortly before the 2002 collapse and on which the direct-rule administration had announced proposals in November 2005, was itself subjected to a review. The anticipated elections to new local authorities would not now go ahead in 2009.

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The Education and Skills Authority, which was to be established in April 2008, replacing the five education-and-library boards, would not now be in place for a further year. And deadlock remained between the parties on academic selection, as the clock ticked down to the abolition of the ‘11-plus’ test after the school year 2007–2008, with the prospect of needless anxiety for late-primary children and their parents. Second, there is the factor of unionist resistance to an ever-closer relationship with Dublin if that takes on a constitutional air rather than being limited to areas of mutual socio-economic benefit. Unionists of all hues show no interest in a wider reconciliation agenda – and, in fairness, there is very little enthusiasm for it in the Republic, where a significant public interest in the north has largely turned to indifference. In any event the St Andrews Agreement, reiterating the position in the Belfast Agreement, made clear that any changes to the north–south architecture arising from the review would only be with the consent of the Assembly and the Oireachtas. Thus they would be subject to a unionist veto. Even were there not to be a unionist majority in the Assembly, it would only require 30 unionist Members of the Legislative Assembly (MLAs) to use the procedure in the Belfast Agreement for a ‘petition of concern’ to ensure that any vote on further north–south structures required ‘cross-community’ support to pass – an impossible barrier unless there were to be broad endorsement from unionists in particular, as against MLAs in general. And this is the third important consideration: the two relationships, between Belfast and London and between Belfast and Dublin, do not constitute a zero-sum game. Conceived positively, it would be perfectly possible – and arguably ideal – for Northern Ireland finally to climb out of its historic sectarian mire and, like the Republic after the effective abandonment of the nationalist project in the 1960s when it reconnected with the global economy, rejoin the rest of the world. But the ties connecting Belfast and London could continue to fray while those linking Belfast and Dublin remain constrained. Here, instead of a move towards a civic cosmopolitanism more attuned to coping with a globalising context, Northern Ireland could become indefinitely entrenched in a conservative communalism. Devolution, in other words, becomes involution.

The matrix The matrix for this chapter (see Figure 4.3) utilises the concentration/dispersal axis on the dimension of relationships between Belfast and London, taking full account in the process of the north–south relationship in Ireland. The other axis is one of polarisation/normalisation, addressing the vectors of development within Northern Ireland itself. In the north-east corner is the scenario which is probably implicit in the calculations in Whitehall. Northern Ireland settles down as a UK region,

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Concentration of power · Fiscal control · Policy inertia at Stormont

‘Bumpy ride’ · Devolved government repeatedly ‘nursed’ by London and Dublin · Conflicts over fiscal issues

‘Steady as she goes’ · Devolution becomes more stable · Tensions over fiscal issues

Political polarisation · Mutual-veto arrangements · Sectarian party system · Segregated education · Social exclusion

Social normalisation · Civic institutions · Quotidian concerns

‘Bogged down’ · Devolution faces further existential crises · Continual jockeying over constitutional ethos and position of Northern Ireland · Accompanying lowlevel violence and social mistrust

‘Take off’ · Devolution becomes more flexible and innovative · ‘Normal’ civil society emerges · Civic cosmopolitan underpins wider relationships

Dispersal of power · Devolution · Separate civil service · Separate party system · Links to Republic Figure 4.3

Matrix: Four scenarios for Northern Ireland

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albeit with the north–south dimension in Ireland, and political stability engenders a modest economic revival, while the mere passage of time sees sectarian concerns replaced progressively by ‘bread-and-butter’ issues and the threat of violence steadily recedes. There is consensus, eventually, on the devolution of policing and justice to Stormont, if not necessarily by the appointed deadline of May 2008. A separate Northern Ireland Secretary of State is no longer deemed necessary.5 In the absence of significant policy innovation under devolution, there may be continuing tensions over public-expenditure demands. But there will be a desire to remain ‘helpful’ in London as the Northern Ireland administration beds down. We will call this scenario ‘steady as she goes’. In the north-west quadrant is the scenario which would develop if the polarisation between Northern Ireland’s ‘two communities’ were to be sustained, but there was still a desire in London, however vestigial, to manage the situation to keep devolution on the road while constraining the public-expenditure envelope. In this context, Mr Brown might be less inclined to indulge the Northern Ireland administration on fiscal matters, which could be sources of not just tension but conflict – again in the absence of real policy innovations which the devolved administration could present as achievements to the electorate and as distinguishing it from Westminster. This would require the maintenance of a Northern Ireland Secretary, and we will call this the ‘bumpy ride’ scenario. The south-west quadrant is the scenario which London would least want to see emerge. Here, the rafts of concessions – to both ‘sides’ – given by the former Prime Minister to the deadlocking demands of the Northern Ireland parties during the endless ‘peace process’ negotiations come home to haunt his successor. It becomes apparent that a dysfunctional form of government has been bequeathed, hidebound by communal and partisan vetoes, which does nothing to address the irreducible fact that Northern Ireland remains a deeply divided society. Here, the inability to cope with the legacy of the past and the socialisation of young people into a world of ‘parallel lives’ engenders enduring raw sectarianism, manifested in occasional, low-level violence at sectarian flashpoints. None of the ‘peace walls’ comes down and, indeed, even more are built. Amidst the wrangling, policy-making – never mind innovation – very much takes second place. We will call this the ‘bogged down’ scenario. The south-east quadrant is the normatively most attractive scenario. Here, devolution over time is associated with a freeing up of Northern Ireland’s set-in-aspic ‘identities’. The political class increasingly tires of the rigidities built into the Belfast and St Andrews Agreements, as new cross-sectarian alignments on particular issues emerge. More flexible power-sharing arrangements evolve, with parties accepting more responsibility for concluding


inter-ethnic coalitions, amid a reduction in the number of devolved departments, and/or opting to play a constructive opposition role. There is a commitment to make A Shared Future a reality, and a major drive to integrate the education system, so that the past can never be repeated. There is consensus not only on the devolution of policing and justice but on developing the north–south and intra-UK relationships to mutual advantage, and indeed playing a role on the wider European stage. The devolved administration seeks to be given the authority – which Westminster readily grants – to conclude arrangements for any policy area with Dublin on a basis of mutual agreement, including where this involves the establishment of executive agencies, removing the heat from the issue of Irish unification. The historic unionist reluctance to consider ever closer co-operation is replaced by relaxation. The administration also works to build alliances with Scotland and Wales on more radical policies to address social inequality within the United Kingdom – which now has a single secretary of state for the nations and regions – and, like them, joins the ‘RegLeg’ network of European regions with legislative powers. And it establishes a new system of empowered local government on the European model, with a focus on civic rather than communal leadership and a concern to renew the political elite. We will call this the ‘take off’ scenario.

The scenarios While, in as far as any thought has been given to Northern Ireland this far ahead, London would doubtless hope ‘steady as she goes’ would prevail, the balance of the vectors identified here suggests a more cautious calculation. There are clearly more factors for dispersal of power (indeed, much more than for Scotland and Wales) than there are for concentration at the centre. And it is by no means certain that the forces for normalisation within the region will prevail over those favouring sustained polarisation. Inertia and hard political calculation will be significant factors working to sustain the devolved arrangement, even if Northern Ireland remains a deeply divided society. As indicated in the introduction, there is now nowhere else, politically, for either ethno-nationalist ‘side’ to go. Even if the power to govern is not so much shared between the parties as shared out (as the chief executive of the Community Relations Council, Duncan Morrow, warns it may be), the administration can function from day to day, albeit at some considerable cost to efficiency – in the continued duplication of services along sectarian lines, for example – and to the quality of the public sphere. Were further inter-ethnic crises to arise, the temptation of any post-Blair administration, including one run by Mr Brown, will be to refuse to indulge the Northern Ireland parties in the same way as hitherto. Yet tensions over policy issues on which the parties are at loggerheads but which have high

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symbolic value – such as the Irish language at the time of writing – or over future constitutional development, notably with regard to the devolution of policing and justice, could draw in the Prime Minister, however reluctantly, once again, to ensure that the scenario is not ‘bogged down’. The real prize, however, would be to move progressively to the ‘take off’ scenario. Here, the understandable tendency to insist that Northern Ireland parties should take more responsibility for the consequences of their actions should not displace a comprehension that the constitutional arrangements for the region have pertinent effects on their behaviour by way of the incentives, and disincentives, they establish. What distinguishes ethnically divided from ‘normal’ societies is the absence of impartial public authority (Rothstein 2005). This is where the Realpolitik approach of the Blair government, however apparently successful in the short term, over the long run had a corrosive impact. Instead of being impartial and trustworthy, the system of governance for Northern Ireland is now replete with inbuilt vetoes and entrenches communalist politics. Unless this is changed, it will militate indefinitely in favour of the politics of ethnic protagonism, as already evidenced in the political polarisation of the last ten years and the fitful operation and breakdown of the 1999–2002 devolution experience. However much most citizens of the region would devoutly wish it to be otherwise, the collective-action dilemmas which necessitate democratic action become prisoners’ dilemmas in ethnically divided societies, making civic political leadership even more critical – precisely where it is weakest. Only the consistent application of impartial authority, which requires external engagement, can ensure the rebuilding of the social trust necessary to escape the prisoners’ dilemma. In practice, this means looking to codify and simplify the constitutional arrangements for Northern Ireland so that they are not seen as vulnerable, as they are now, to continuing ethnic protagonism from either side. The goal should be to transcend the struggle over Northern Ireland’s external relationships – the Union versus a united Ireland – which has ironically only had the effect of turning the region in on itself. It should be replaced by a commitment to ‘and’ rather than ‘either-or’ – that is to say, by arrangements which would leave Northern Ireland in a federal relationship with the rest of the United Kingdom and a simultaneously confederal relationship with the rest of Ireland. Key to this is ending the zero-sum thinking more appropriate to the era of the ‘nation-state’ than of today’s globalisation, regionalisation and interdependence. The European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (Council of Europe 1980) explicitly allows for such an arrangement between Northern Ireland and the Republic, without Northern Ireland having to leave the United Kingdom, as it speaks of ‘granting to territorial communities or authorities


engaging in transfrontier co-operation in accordance with the provisions of this Convention the same facilities as if they were co-operating at national level’. This would properly put north–south co-operation on an exclusively Irish basis, which Irish nationalists have in theory sought for decades – while ironically often preferring to go over the heads of northern Protestants to deal with Perfidious Albion instead, as with the Anglo–Irish Agreement which so hugely alienated Protestant opinion. It would make Irish unity a reality without that having to take the form of a unitary state – or, indeed, requiring changes to the current Irish state which its citizens would widely deem unpalatable. On the UK front, the Joint Ministerial Committee ( JMC) system needs to be activated as the formal vehicle for intergovernmental relations (IGR), rather than as now confined to European Union issues, to give Northern Ireland a real say within the United Kingdom. The reform of the House of Lords to make it, in part, a voice for the regions and nations – in any event, the only way to square the circle of the Lords being in some way distinct from and complementary to yet not competitive with the Commons – is also crucial. This would undoubtedly begin to forge alliances between citizens of the devolved jurisdictions on socio-economic issues, whereas the current fragmentation goes against the grain of the widespread public support for equal UK citizenship (Jeffery and Wincott 2006: 10) and could yet stimulate the emergence of a reactionary English nationalism (Lodge and Schmuecker 2006: 90–6).

Comparative evidence A useful way to address the future is to look for comparators which may offer a guide. And there are two other regions/nations in Europe where power-sharing democracy has been essayed in moving from civil conflict to peace and reconciliation: Bosnia-Hercegovina and Macedonia. These highlight the tension along the polarisation–normalisation axis identified with regard to Northern Ireland, with Bosnia-Hercegovina arguably more polarised and the power-sharing arrangement established in the Dayton accords of 1995 largely non-functional, while Macedonia is a more successful arrangement, with power-sharing sustained ever since it was renewed following the Ohrid Agreement of 2001 (Council of Europe 2001) – albeit imperilled, at the time of writing, by the reverberations of the unilateral declaration of independence in neighbouring Kosovo. Dayton recalls the Belfast Agreement in the way the external powers-thatbe went with the grain of the internal ethnic protagonists (Mulaj 2005: 16): ‘[i]n the comprehension of Western mediators, the way to deal with the conflict was to reach a compromise between community leaders, which in effect implied taking on board the very perception of the conflict that nationalists

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wished to propagate.’ It was a policy justified by the ‘Balkan exceptionalism’ (Gallagher 2003: 5) associated with the notion of ‘ancient hatreds’ – a stereotype widely applied to Northern Ireland too. The Bosnia-Hercegovina constitution, contained in a Dayton annex, divided the country into two entities, the Federation of Bosnia and Hercegovina populated mainly by Muslims and Croats – in which power was further devolved into ten cantons – and Republika Srpska. It named ‘Bosniacs’ (implicitly Muslims), Croats and Serbs as ‘constituent peoples’, along with – though clearly residually – ‘others’ and ‘citizens of Bosnia and Herzegovina’. This communalism was the guiding institutional principle. A tripartite executive presidency would comprise a Serb elected by the people of Republika Srpska, and a ‘Bosniac’ and a Croat elected from within the federation. How, for example, Croats left within Republika Srpska were to avoid disenfranchisement was not explained. Powers principally rested with the entities, with the state itself profoundly weak. The Belfast Agreement, in terms of the institutions specific to Northern Ireland, is primarily a consociationalist scheme – that is to say, one based on the theory that high fences make good neighbours. Yet it does contain integrationist elements tending towards a civic society, rather than one permanently riven by ethnic division. In particular, the provisions for integrated education and mixed housing – even if honoured more in the breach than the observance – and for equality and human rights pointed in this direction (Oberschall and Palmer 2005). Nevertheless, this sub-text was clearly just that, and the post-2002 negotiations on a revised formula, to woo the DUP, only served to strengthen the consociationalist character of the architecture. As indicated, a critical factor in moving a divided society beyond those divisions is a capacity to exercise civic leadership. In Macedonia, the late President, Boris Trajkovski, played a key role in the context of the Ohrid agreement. The Dayton architecture prevented any such trend by definition, with its trio of ethnic co-presidents – as with the system of first minister and deputy first minister in Northern Ireland after the Belfast Agreement, where the nominees were explicitly drawn from the communalist blocs established by Assembly ‘designation’. Similarly, agreements to end ethnic conflicts need to be based on civic principles, which, while ensuring against future minority oppression, point the way towards a new society beyond division, rather than simply accommodating existing fault lines and so perpetuating the conflict into the indefinite future. The agreement concluded at Lake Ohrid fell broadly within the framework of the evolving international standards on minority rights, notably the Council of Europe European Charter for Regional or Minority Languages and its Framework Convention for the Protection of National Minorities (Council of Europe 1992, 1995). It affirmed that the ‘fundamental


values of the constitutional order’ were ‘the basic freedoms and rights of the individual and citizen, recognised in international law and set down in the Constitution’ and ‘equitable representation of persons belonging to all communities in public bodies at all levels and in other areas of public life’. As a result, the Ohrid agreement ‘largely avoided institutionalising ethnicity’ in the manner of Dayton. It did not parcel out government ethnically nor did it establish major sub-state ethnic entities. The result was ‘greater room in Macedonia for non-institutionalised, but nonetheless co-operative, politics’ (Bieber 2005). The power-sharing system, unlike that in Northern Ireland, is sufficiently flexible to allow for alternation of parties in government, and of course for an opposition in the process. This did not mean all was now inter-ethnic sweetness and light. A report in June 2006 by the United Nations Development Programme found, however, that inter-ethnic relations had stabilised, with social distance between members of the different communities not out of kilter with elsewhere in Europe. In Macedonia, unlike Bosnia-Hercegovina, and to a lesser extent Northern Ireland, normalisation is thus the predominant trend.

Conclusions Short of a change of approach from politics as communal negotiation and towards the establishment of impartial authority in Northern Ireland, sectarian polarisation is likely to be sustained. While there will be continuing low-level violence at the margins, paramilitarism will however mainly affect the black economy, with a return to large-scale ‘terrorist’ activity improbable. Northern Ireland politics will not have the central role they played during the Blair premiership. Neglect by Mr Brown, however, could be as serious an error as the micro-management Mr Blair pursued, indulging as this did the irresponsibility of the region’s parties and engendering an atmosphere of moral hazard. But Northern Ireland could play a role in wider pressures, led by Scotland – or, rather, by the Scottish National Party (SNP) – for more decentralised UK governance arrangements. Paradoxically, these would involve more formal intergovernmental relationships, via the JMCs and the British–Irish Council. At the centre, Lords reform which provided a voice for the regions and nations would reassure members of the Protestant community, particularly if there were to be – as there should be – further developments in terms of north–south co-operation in Ireland. It is worth bearing in mind that, though SF will sustain its Westminster boycott – as otherwise it would be indistinguishable from the Social Democratic and Labour Party (SDLP) – the now-significant DUP bloc could conceivably hold the balance of power after a close Westminster election. Such a situation, similar to that held by the

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Ulster Unionists vis-à-vis Labour in the later 1970s and vis-à-vis the Conservatives in the early 1990s, would obviously jeopardise the critical exercise of impartiality. The major concern identified here is that Northern Ireland is allowed to drift off the radar screen. Having been neglected in past decades because it was stereotypically placed in the ‘too difficult’ category, it could now be neglected again because it has been conveniently categorised as ‘done deal’. Ensuring Northern Ireland does move ‘steady as she goes’ may well require continued intervention – albeit more considered and less shorttermist than in the recent past. And if the long-suffering citizens of that region are to enjoy the ‘take off’ which, after so many ‘troubled’ decades, they arguably deserve, a very well-thought-through, strategic commitment will be essential.

Notes 1. The detail from which this introductory section is drawn, as well as later references to events since the Belfast agreement, can be found in the Northern Ireland Devolution Monitoring Reports since 1999, part of the wider Constitution Unit project to that effect, on the latter’s web site at www.ucl.ac.uk/constitutionunit/research/devolution/devo-monitoring-programme.html. 2. Only 6 per cent of Protestants would ‘probably trust’ – and none ‘definitely’ – a Sinn Féin minister (Northern Ireland Life and Times Survey 2000). 3. The DUP was the larger of the two parties in the 2007 Assembly election, and there was a 7:5 unionist:nationalist ministerial balance in the executive subsequently formed. 4. Note the brevity of the Northern Ireland list of policy innovations, by comparison with Scotland and Wales, identified in Hazell (2003: 290–1). 5. In theory, a separate Northern Ireland Office could be retained as one of the fiefdoms of a minister for all of the United Kingdom’s regions and nations. This would raise severe issues of accountability, however, particularly as the only rationale for so doing would be the large remaining responsibilities for the politically sensitive issues of policing and prisons, in the absence of devolution of policing and justice powers.

5 Answering the English Question Alan Harding, Robert Hazell, Martin Burch and James Rees

What is the English question? Whenever devolution within the United Kingdom has been proposed, the ‘English Question’ has always emerged as its inevitable corollary. If there is greater home rule for the rest of the United Kingdom, so the argument goes, should a similar ‘solution’ not also apply to, or within, England? Should England as a whole have its own institutionalised political voice or, alternatively, should it be divided into devolved units of government? Since 1998, England has been the gaping hole in a devolution settlement that has still affected only 15 per cent of the UK population (or just over a quarter if the strengthening of citywide governance for London is deemed a devolutionary measure). Until recently, the English barely seemed to care but that may be starting to change. In the face of recent evidence that the people of Scotland and Wales have an appetite for more nationalist governments and further autonomy, there is a growing perception that the English may be ‘losing out’. Clear answers to the English Question, however, seem as far away as ever; not least because of the bewildering array of ostensible solutions on offer. This chapter divides the English Question into three inter-related themes as follows: Strengthening England’s place in the Union • If England wants its own separate political voice, to counterbalance the louder, independent voices accorded to Scotland, Wales and Northern Ireland, might this be supplied by an English Parliament, ‘English votes on English laws’ or independence for England? Decentralising the government of England • If England’s component parts seek greater autonomy, is this best achieved by elected regional assemblies, administrative regionalism, city-regional governance, stronger local government and/or elected mayors? 73

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Continuation of the status quo or devolution without demand • Or do the English want no share in devolution, and if so, what chance is there that some form of devolution will be imposed upon them? In the first part of the chapter, various answers to these thematic ‘English Questions’ that have been proposed since 1998 are assessed according to the levels of elite and mass support they have garnered and the feasibility of implementing them. It should be recognised, though, that the context in which the development and assessment of these options have so far taken place has been characterised by: • An unprecedented period of consistent national economic growth which has benefited every nation and region of the United Kingdom, but unequally, so that the gap in economic performance between the core southern English regions – London, the South East, the East and the South West – and the rest has grown (see Chapter 3); • A reluctance on the part of Government to re-examine the Barnett formula whereby the smaller UK nations are guaranteed quota-based public-spending settlements that are less related to need than they are in England; and • Sustained increases in investment in public services which, particularly since 2000, have cushioned the spatial impact of uneven market-driven growth. In the second part of the chapter we therefore develop future scenarios in which we ask how the drivers of devolution in or for England might change, and how views about answers to the English Question(s) might be affected, depending upon whether these preconditions continue to hold.

Answers to the English Question: The options Figure 5.1 summarises the various answers to the English Question that have been floated in the last decade, drawing a distinction between those for which the main issue is the constitutional relationship between a unified England and the devolved non-English territories and others where the primary concern is with the levels of autonomy accorded to governmental units at the sub-England level. Whilst the two sets of options are radically different, the overall dilemma to which the table draws attention is not so much the entrenched conflict between the different options but the fact that there is little consensus on the individual options themselves, between political parties, between levels of government or between what is known about popular opinion and the preoccupations and preferences of political elites.

Elite support

Mass support

Feasibility

A. Strengthen England’s place in the Union English Parliament

Low

Low but rising

English Parliament would risk being as overburdened as Westminster and seen as equally remote

English votes on English laws

Conservative party policy in 2001 and 2005 manifestos, reaffirmed in 2006 and 2007

60 per cent support in England, 50 per cent support in Scotland (Curtice 2006a)

Strong Conservative support but questionable whether it would be implemented by a future Conservative government. Also becomes a live issue if a future Labour government lacks, or has a small, majority

English independence

Negligible

Negligible

Hard to envisage England unilaterally declaring independence from rest of the United Kingdom

Variable over time and between regions in opinion polls. Negligible when tested in referendum

Unlikely in the near future following ‘no’ vote in 2004 referendum in North East. Proposed Assembly powers were weak. Public appetite for ‘more politicians’ proved limited

B. Decentralise government of England Elected regional assemblies

Labour party policy 1997–2004, Liberal Democrat policy. Opposed by Conservatives

Figure 5.1 Summary of potential answers to the English Question 75

Source: Ipsos Mori polls in English Constitutional Convention (2006)

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Elite support

Mass support

Feasibility

Administrative regionalism

Effectively Labour party policy, post-2004. Opposed by Conservatives

Little public knowledge or interest

Further deconcentration (GOs) and decentralisation (RDAs) likely under Labour governments

City regions

High in some putative city regions. Low overall

Not known but unlikely to be high given parochial loyalties and low public visibility of ‘strategic’ issues

Most probably a patchwork solution which would require local government reorganisation if it were to be implemented in a strongly devolved form

Strengthen local government’s autonomy

All major parties support in principle but none has especially strong proposals

Local councillors more trusted than MPs, civil servants and Ministers in opinion polls, but little evidence of demand for more powerful local authorities as opposed to better local services

Would require significant transfer and strengthening of powers and functions, including additional revenue-raising power

Elected Mayors

Low at local government level. Gaining support within national parties

High in opinion polls, moderate to low when tested in local referendums

Has become easier to operationalise for existing authorities over time. Would require primary legislation if introduced for city-regions


Alan Harding, Robert Hazell, Martin Burch and James Rees 77

‘All-England’ options Thus, for example, two of the three ‘all-England’ options – independence for England (that is, dissolution of the Union) and the creation of an English Parliament – have attracted no significant support from within the major political parties. There is some evidence of extra-parliamentary mobilisation for the latter milder option in that there exists a Campaign for an English Parliament which, together with the English Democrats group, launched the English Constitutional Convention in 2004. There is little sign as yet, however, that the Convention is capable of emulating its Scottish counterpart and producing detailed, robust and influential plans for the size, powers and functions of an English Parliament. On the two occasions since 1998 when maverick MPs tested their colleagues’ appetite for an English Parliament, support proved derisory.1 Similar scepticism about these two options also appears to apply to the population as a whole although opinion polls suggest that popular support for an English Parliament has grown in recent years (see Figure 5.2). It should also be noted that when pollsters have specifically drawn attention to the absence, in England, of the devolved institutions enjoyed by the non-English UK nations, popular support for an English Parliament has generally been higher.2 Overall, though, supporters of an English Parliament find it difficult to resolve two problems, both deriving from the size of England compared to the United Kingdom. The first is that an English Parliament would be larger, Q. With all the changes going on in the way different parts of Great Britain are run, which of the following would be best for England . . . ?

1999

2000

2001

2002

2003

2006

2006 England

2718 %

1928 %

2761 %

2897 %

975 %

939 %

798 %

For England to be governed as it is now, with laws made by the UK Parliament

62

54

57

56

55

45

44

For each region of England to have its own assembly that runs services like health

15

18

23

20

24

17

18

For England to have its own new Parliament with law-making powers

18

19

16

17

16

26

27

5

9

4

7

5

2

2

10

9

Base: adults in Britain

None Don’t know Figure 5.2

Support for an English Parliament/elected regional government

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and on most domestic matters more important, than a restructured ‘rest of Westminster’. The second is that England, with four-fifths of the UK population, would swamp its smaller constitutional neighbours. Historically, no federation has operated successfully when one of its component units has been greater than around one-third of the size of the larger whole. By contrast, ‘English votes on English laws’ – the proposal whereby MPs representing non-English constituencies would be debarred from voting in Parliament on matters exclusively affecting England – has national political support in that it has been Conservative Party policy since 2000 (Hague 1999, 2000). There is considerable popular support for this option, too. Polling data consistently show that 50–60 per cent of people in England agree that Scottish MPs should no longer be allowed to vote on English laws, now that Scotland has its own Parliament and English MPs cannot vote on matters devolved to Scotland (Curtice 2006a). Even a majority of Scots support restricting the voting rights of Scottish MPs in this way (Curtice 2001: 234). There would, however, be formidable technical and political problems in implementing such a reform. On the one hand it is difficult, if not impossible, to isolate laws that have implications only for the English from the broader body of Westminster legislation (Hadfield 2005; Hazell 2005). On the other, the effect of such a change would be to create two classes of MP, ending the traditional reciprocity whereby all members can vote on all matters. It would effectively create a parliament within a parliament (Hazell 2000, 2001; Russell and Lodge 2006) and lead to a situation in which, after closely fought elections, the UK government might not be able to command a majority for its English business, leading to significant political instability. There must, therefore, be some doubt about the likelihood of ‘English votes on English laws’ ever becoming a political reality, even under a Conservative government. This might explain why, on the rare occasions that Parliamentary opinion on ‘English votes for English laws’ has been tested,3 critics have outnumbered proponents by a wide margin. Sub-national options If there are no easily deliverable or widely supported ‘all-England’ answers to the English Question, the same is truer still of ostensible solutions at the sub-national scale. As is well known, for a number of years after 1998, the UK Government appeared to be moving tentatively but inexorably towards elected regional assemblies (ERAs) as its favoured solution for the English regions outside London. The emphatic rejection of the relatively weak ERA model on offer by the people of the North East in a 2004 referendum, however, stopped this initiative dead in its tracks and occasioned a rethink in


which a number of alternatives have been considered but none has emerged as a clear favourite. The first of these, administrative regionalism, is a mildly decentralist rather than devolutionary solution whereby public policy responsibilities, particularly those seen as linked to economic development, along with greater discretion over the use of existing centrally redistributed resources, are increasingly entrusted to deconcentrated and decentralised regional agencies – principally Government Offices for the regions (GOs) and Regional Development Agencies. This option featured strongly in the 2007 review of Sub-national economic development and Regeneration (HM Treasury 2007b; SNR for short), which announced a timetable for the abolition of indirectly elected Regional Assemblies. It addressed issues of political accountability through commitment to appoint Regional Ministers to explore the possibility of establishing select committees for each region (Ministry of Justice 2007c: 37), and to ensure that regional agencies act ‘strategically’ and in partnership with elected local authorities. At the same time, however, the SNR also offers selective support for all of the other non-regional ‘answers’ to the English question that have been proposed since 1998. The first of these, the development of city-regional governance, has acquired a higher profile since the collapse of democratic regionalism in 2004, not least because the city-region is seen, by some, as having greater functional integrity and popular resonance than the administrative region and therefore represents a more logical scale for devolved or decentralised decision-making. ‘City-regionalism’ is seen by protagonists primarily as a means of selectively improving economic competitiveness rather than anything resembling a new constitutional settlement. For its non-governmental champions, it is generally seen as a way of improving the economic performance of provincial cities and their hinterlands. For Government, as clarified by the SNR, it is one form of ‘sub-regionalism’ that might be encouraged, through somewhat under-defined mechanisms, wherever efficiency gains and improved effectiveness can be achieved through bottom-up, crossboundary and inter-agency collaboration. It is not clear how these different drivers of city-regionalism will be aligned – if at all – in practice, but the result is likely to be ad hoc, incremental and decentralist rather than comprehensive and devolutionary. The second non-regional option, the strengthening of local government autonomy is more devolutionary, in theory, and builds upon the argument that local authorities could perform their ‘place-shaping’ roles more effectively if they were given more responsibility and were subject to less central tutelage and fewer performance targets (Lyons 2007). Quite how devolutionary the rediscovery of trust in local government might prove to be in practice, however, depends substantially upon whether steps are taken to enable enhanced revenue-raising capacity at the local level. The third non-regional option, the election of more city mayors, represents the continuation of a

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slightly different view of local authority performance that has emerged out of local government modernisation initiatives, and has tended to identify the ‘problem’ with local authorities as being more related to poor leadership and weak accountability than to paucity of powers or resources. In the wake of the Department for Communities and Local Government 2007 white paper on local government, steps are being taken to allow local authorities to move to a mayoral model without the need for a referendum as was previously the case. This may lead to more directly elected mayors for existing authorities but if, as is hoped in some quarters, there is to be a move to city-regional mayors, further legislation will be required. Each of the above sub-national reform options has its own ‘elite’ supporters within and beyond Westminster and Whitehall. None of them, however, has attracted a high level of popular interest and support. As Figure 5.2 shows, support for elected regional assemblies peaked a year before the North East referendum and was in any case consistently less favoured than the status quo when the two were compared with one another. In the other cases, the difficulty that people face in identifying clear links between institutional structures, effective governance and tangible outcomes has meant that there has been little public engagement with debates about reform.

The future of devolution for or in England What changes are likely at Westminster? The above analysis suggests that a clear answer to the English Question is far from imminent, and that most institutional solutions are fraught with difficulty. At the same time, however, the situation is far from stable, and pressures for change may grow. To illustrate what changes are possible over the next ten years or so we have constructed a set of scenarios, the first depicting possible changes at Westminster and the second, changes at the sub-England level. The range of possible changes at Westminster is depicted in Figure 5.3. The poles of the matrix show two broad sets of outcomes. The north– south axis, common to all the devolution chapters in this volume, depicts a continuum between the concentration and dispersal of power within the United Kingdom. The east–west axis shows the integration or disaggregation of Westminster as a territorial parliament. This enables us to depict four possible scenarios. Recentralised government in England with a unionist Parliament In the north-west quadrant the government in Whitehall remains centralised, and Parliament at Westminster remains integrated and unionist. Centralisation in Whitehall could include some measures of recentralisation. The experiment with Regional Ministers initiated in 2007 could be abandoned (as the previous experiments with Regional Ministers have been).

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Concentration of power · Centralism and uniformity · Britishness · Two party system · Strong centre in Whitehall · Tight central control of regional and local budgets

Westminster

· Government recentralised in Whitehall · Westminster integrated and unionist

Integrated Westminster · Union Parliament · No separate English forum · Equal voting rights for all MPs

· Decentralisation of government from Whitehall · Integrated and unionist Parliament

· Whitehall administers centralised government to England · Separate procedures for English business at Westminster

Disaggregated Westminster · English votes on English Laws · Differential voting rights for MPs · English Parliament

· Decentralised government · Disaggregated Westminster

Dispersal of power · Decentralisation and diversity · Englishness · Multiparty system including UKIP, English parties · More revenue raised regionally and locally Figure 5.3

Possible changes at Westminster

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At Westminster, Parliament would remain integrated and unionist. English Regional Committees would turn out to be a failed experiment, with no effective powers, no staff and no ability to develop or sustain a policy agenda, and after poor attendance they would not be renewed after a future general election. With this failure coming on top of the failure of the Standing Committee on Regional Affairs (which last met in 2001), there would be no appetite to create any further English forums at Westminster. The appetite might be further reduced if the Scottish, Welsh and Northern Ireland Select Committees were merged, and as a sop to English regional interests, the merged committee were invited also to consider English regionalism. Continuation of a strong unionist culture at Westminster suggests that the Campaign for an English Parliament makes no headway. English nationalist parties like the English Democrats might fold. Polls would show declining support for an English Parliament as devolution settles down and some of the worst anomalies are rectified. The spending gap would continue to narrow, reducing the main source of English grievance; there might be a reduction in the numbers of Scottish, Welsh and Northern Ireland MPs; and there might cease to be separate territorial Secretaries of State. Decentralised government in England with a unionist Parliament The south-west quadrant depicts a scenario in which Parliament at Westminster remains integrated, but there is further decentralisation of government from Whitehall. This could take the form of further administrative deconcentration or it could be political, with a revival of elected regional assemblies. These scenarios are explored in Figure 5.4. Suffice it to note here that further administrative decentralisation could lead to demands for stronger Regional Committees at Westminster. But if there were political devolution, Westminster’s Regional Committees could become redundant, because scrutiny would be carried out in the region by the successor bodies to the Regional Assemblies. English votes on English laws The north-east quadrant depicts a scenario in which the Westminster Parliament develops separate procedures for English business, while Whitehall administers a centralised system of government for England. Pressure may build for English votes on English laws, through private members’ bills and Early Day Motions (EDMs), attracting support not just from Conservatives. The domestic departmental select committees may become de facto English committees, conducting inquiries only into English matters. The whips and the Committee of Selection may appoint only English MPs to sit on these committees. Similarly at Question Time for ‘English’ Whitehall departments, the Speaker may give precedence to English MPs. Scottish, Welsh and Northern Irish MPs will decide it no longer worth attending: a convention will have been born.

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Concentration of power · Centralism · Strong centre in Whitehall · Tight central control of regional and local budgets

English regions

A

B

Appointed sub-national tier · Appointed regional assemblies · Appointed RDAs · Network Governance

C1

Elected sub-national tier · Elected regional assemblies, or · Elected Mayors, or · Strengthened local government

C2

D

Dispersal of power · Decentralisation · Weak centre in Whitehall · More revenue raised regionally and locally · Strong GOs · Local functions and policy making Figure 5.4

Future sub-national scenarios

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Full introduction of ‘English votes on English laws’ is only likely to happen following the election of a Conservative government. Even with a clear manifesto commitment, the government may pause before making the change. It might do so initially with a ‘quarter-strength’ change, by implementing the 1999 recommendation of the Commons Procedure Committee to refer English bills for their Second Reading to a committee of 35 English MPs (Hazell 2000; Procedure Committee 1999). Or it might go for a ‘three-quarter’ strength procedure, following the Norton Commission’s recommendation to have Second Reading and Report stage in an English Grand Committee; committee stage in a Special Standing Committee restricted only to English MPs; and only Third Reading open to all (Norton Commission 2000). Sir Malcolm Rifkind MP has suggested that a convention could develop that the full House would not overturn decisions of the English Grand Committee (Rifkind 2007b). The main technical difficulty will be identifying bills which count as ‘English’. Strictly what Scottish MPs should be debarred from voting on is not ‘English’ questions, but matters devolved to Scotland. What will be required is an English equivalent to Schedule 5 of the Scotland Act 1998 to define what are English questions and matters devolved to England. This question might be given to the clerks in the Public Bill Office, who in turn would advise the Speaker; but the Speaker’s rulings would be strongly challenged, because so much legislation would be affected. Just under a third of all Acts passed by Westminster apply to England and Wales (Hazell 2005: 228–9). Over time it could emerge that a ‘parliament within a parliament’ was being created, as so much business was being labelled English. Pressures would increase to reduce the number of Scottish and Welsh MPs, because of the reduction in their workload. The sense of separate English forums at Westminster could also grow if domestic select committees and Question Time to ‘English’ departments were formally restricted to English MPs. This could build momentum for a separate English Parliament. An English Parliament The south-east quadrant depicts a scenario in which the government of England is decentralised, and Westminster is disaggregated. This might eventually lead to an English Parliament through the route described above, with English votes on English laws as an intermediate stage. But the process could be accelerated through two external factors. One would be the English Constitutional Convention producing a strong report, with detailed plans which raise the credibility of an English Parliament as a feasible project. They might follow the example of the Scottish Constitutional Convention and use the report to consult widely up and down the country. The project would really gain credibility if heavyweight politicians in mainstream political parties came out in support. These are more likely to be Conservatives


and Liberal Democrats. The Conservatives would come under pressure if the English Democrats or United Kingdom Independence Party (UKIP) began to win seats in regional list elections (to the European Parliament, or an elected second chamber) on the English nationalist issue. The issue might conceivably split the Conservative Party, much as the Irish Question split the Liberals in Gladstone’s time. Another external factor which could accelerate the process is successful provocation by the Scottish National Party (SNP) government in Scotland. A series of acts of non-cooperation could help to fuel resentment, which could also grow as English public awareness grows of diverging policies on tuition fees and health care, leading to a sense of different citizen entitlements north and south of the border. The sense of resentment would be stronger if the spending differentials remain unresolved, and the Barnett formula does not deliver the promised convergence. What sub-England changes are likely? Debate on all-England reforms has been, and is likely to remain, dominated by constitutional issues, as filtered through political parties. At the sub-England level the strong focus on economic development issues that has dominated the discussion of the options means that future scenarios, here, are more sensitive to the broad economic outlook for the United Kingdom, the way economic trends play out spatially and how they impact upon the sub-UK distribution of public funding. In examining potential lines of development, Figure 5.4 anticipates that the principal ‘axes’ of change will involve degrees of centralisation, as above, but also the extent to which future reforms involve democratisation or further development of appointed bodies at regional level. So the horizontal axis in Figure 5.4 shows the dichotomy between appointed and elected bodies at regional and local levels. At the time of writing, the first signs of economic slowdown are appearing in the United Kingdom in the wake of global shocks induced by the mortgage-market crisis in the United States. Should this prove to be no more than a temporary blip, the short-term future of sub-national governance arrangements, under either a Labour or a Conservative government, seems likely to be characterised by incremental change that continues along existing lines of both parties’ thinking in respect of the modest ‘empowerment’ of local authorities and, one way or another, continues the process of tidying up a set of institutional arrangements that were first developed with a move to elected regional assemblies in mind. Both parties are likely to support growth in the number of elected mayors but only insofar as local authorities themselves wish to move in that direction. Under Labour, this modest commitment to a new localism will run alongside a strengthened administrative regionalism in which appointed and decentralised bodies continue to play a key role in economic development,

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and some discretion over the use of related national resources – but not influence over the level of those resources – is passed to the regions. A Conservative government would offer regional business communities the opportunity to decide whether they want to retain the most influential of the unelected regional bodies – Regional Development Agencies – and adjust to the verdict by either retaining them or devolving some of their powers and resources to local government. One way of achieving this could be the development of city– or sub-regional governing arrangements, an option that Labour is likely to support but without stripping out agencies at regional or local levels. In neither case will short-term change be, or be represented as, an answer to the English Question. The direction of travel will be broadly decentralist and permissive rather than directive and devolutionary. Outcomes will tend to rest upon voluntaristic, bottom-up leadership and coalition building; the ‘nesting’ of strategies and programmes developed at different spatial levels; and the effectiveness with which sub-national interests are able to lobby at the national level and broker selective ‘deals’ with government departments. Within this fluid policy regime, the relatively ‘light-touch’ approach adopted by Government will stand in sharp contrast to the one that will guide its approach to London and its hinterland. Here, in explicit terms, the capital will continue to benefit from the only directly elected, cross-district, strategic authority in urban Britain. Implicitly, a London super-regional growth strategy will continue to be driven by very significant, discretionary public investments in infrastructure, megaprojects (principally the Olympic Games) and new house-building, in particular. The effect will be to increase the gap in economic growth rates between the ‘London super-region’ and the rest of England. The likely short-term direction of travel under prevailing economic and public-spending conditions is represented schematically in Figure 5.4 by movement along the path between A and C1 . In this scenario, the governance of England remains relatively centralised, but the importance of the sub-national level as a territorial and organising unit – be it at regional, cityregional or sub-regional level – is further recognised. Institutions at this level are largely appointed or ‘networked’ and remain substantially influenced and regulated by the centre. (To the extent that a Conservative administration moves against regional agencies and passes responsibilities to local authorities, singly or collectively, the direction of travel shifts marginally towards C2 .) The path between A and B is the one that would have been taken had the move towards elected regional assemblies been successful and sustained. Here, government remains centralised, whilst relatively weak elected bodies at the regional scale play moderate roles in policy-delivery and as ‘shock absorbers’ within the regions. This scenario is unlikely to materialise under future governments of any political stripe.


The path between A and D, on the other hand, represents a potential, longer-term direction of travel produced by a repoliticisation of territorial politics within England. This repoliticisation is only likely to be triggered by an economic downturn or crisis, the causes of which could vary between a relatively mild but pronounced lull within an economic cycle; one or more environmental disasters; the failure of the UK economy to cope with growing competition at the global scale; or sustained panic within the world’s financial markets. The precise nature and causes of a future economic downturn in the United Kingdom need not detain us. What matters, for exploratory purposes, is what this might mean for the politics of territorial governance. This pathway from A to D sees Government surrender a significant degree of power and influence to sub-national bodies in line with what might appear to be a ‘common-sense’ answer to the English Question but in reality is the result of a wish to devolve and escape responsibility for difficult choices. Within this scenario, economic slowdown or stagnation results in pressure on public finances and a diminution in the level of public investment that has cushioned the poorer-performing regions or city-/ sub-regions in England from the full effects of economic underperformance. This, in turn, politicises decision-making on resource allocation between the regions and nations of the United Kingdom and makes the Barnett formula untenable. The spatial distribution of national government resources to subnational levels in England then becomes a highly charged political issue around which various sub-national stakeholders mobilise. The interplay between a national government keen to pass down responsibilities during hard times and the constellation of extra-Parliamentary interests that may increasingly see more value in mobilising amongst themselves than in expecting solutions to the issues they face to come from the centre results in a process whereby Government passes powers and responsibilities to the sub-national level on the belated assumption that devolution means giving power, as well as responsibility, away. The extent to which this shift favours the ‘lagging’ English territories, as was the intention in the ill-fated move to ERAs, or the economically more buoyant ones is not easy to predict. Partially, this depends upon the complexion of the government that will be in power at the time. However the critical importance of ‘middle England’ to the electoral fortunes of the major parties and the need to trade off the comparative economic dynamism of the London super-region with the quality of life and environment that its residents experience suggests two possible scenarios. A more redistributive perspective might see a devolution ‘deal’ being constructed for the North not just on the basis of its growth ‘needs’ but also as a way of ensuring sustainable growth in the South. At least as likely, though, is that southern regions will be able to construct a very English version of the Italian Lega Nord narrative whereby a more devolved and less redistributive approach to public finances is advocated on the basis that it is more economically efficient, overall. In either

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case, a form of English devolution materialises not because it is in any sense an answer to the English Question but because it suits both national and sub-national decision-makers in their attempts to address the impact of economic downturn.

Conclusions Which of these scenarios might eventually win through? As we have seen, the drivers of change are many and varied: economic factors, in particular the likelihood that the economic boom conditions of the last 15 years cannot be sustained indefinitely; different party policies; and, underneath it all, the possible slow growth of English nationalism. It is not a stable situation, and it is still far from clear which institutional scenarios are most likely. Within England there is an extraordinary array of different regional and sub-regional structures, and a wide range of possible solutions. Technocratic factors are more important than popular pressures. Political and bureaucratic elites will determine whether the regional tier continues to grow, centered around the Regional Development Agencies (RDAs), Government Offices and the new Regional Ministers. If it does, there will continue to be some demand for the regional tier to be made more democratically accountable to or within the regions, but precedent suggests that significant institutional change would only be likely if these relatively weak ‘bottom-up’ demands were allied to much stronger ‘top-down’ determination to surrender autonomy downward so as to be able to manage – or rather deflect – sub-national demands more effectively. At Westminster, judged by the tests we set at the beginning of the chapter, there is only one solution which commands both mass and significant elite support. It is possible that ‘English votes on English laws’ would be introduced in some from by the next Conservatives government, but not necessarily even then. The technical and political difficulties are formidable. It is not a high-salience issue and will only become one if the English develop a real, as opposed to a hypothetical, sense of grievance about non-English MPs voting on English laws and/or the preferential public expenditure settlements experienced outside England. In the early years of devolution the English have appeared relaxed about the consequences of constitutional change. That may continue for some time to come. Most of the solutions analysed in this chapter were found wanting in either their feasibility or their popularity, and some in both. The English Question clearly does not have a magic solution. Nor can it be answered purely in logical terms. It is a political question, about the governance of England, and the answers must ultimately come from the English people and the governments they elect. Only the people of England can say for how long, and under what conditions, they are willing to tolerate the


anomalies thrown up by devolution, and whether they are ready to agitate or vote for change.

Notes 1. Private Member’s Bill, Theresa Gorman (Con), 1999; Early Day Motion 670, Frank Field (Lab), 2007. 2. Support for an English Parliament when the question was posed like this was 24 per cent in a YouGov poll conducted in January 2005, 41 per cent (MORI/ECC) in July 2006, 68 per cent (ICM) in November 2006 and 61 per cent (BBC) in January 2007. 3. For example, in Early Day Motions 10 (1999), 1402 (2006), 2519 (2006), 299 (2006) and 1432 (2007).

6 The Future of Britishness Arthur Aughey

In Understanding the United Kingdom, Richard Rose (1982: 62) wrote that only a too-clever-by-half theorist ‘would create a state with two separate legal systems (one Scots and the other for England, Wales and more or less for Northern Ireland), have two different state churches, or govern one of its parts by “temporary” direct rule’ (Northern Ireland). This diversity was consistent with the maintenance of the Union, he thought, ‘as long as all partners continue to accept the authority of the Crown in Parliament’ 1982: 62. Rose spoke also of the ‘asymmetry’ of these ‘multi-form institutions’ and England’s rather anomalous place within it. Asymmetry itself is clearly not new in British constitutionalism nor is it the recent enormity that some have claimed (see Keating 1998). Rose’s point was to indicate the distinctive success of the United Kingdom in sustaining political cohesion despite these differences and asymmetry, and this is what Rose called the ‘steady state’ Union. Twenty-five years later and after the establishment of devolved administrations in Scotland, Wales and Northern Ireland, one can detect an inversion of Rose’s argument. Douglas Hurd, for example, thought that the United Kingdom had become a ‘system of amazing untidiness – a Kingdom of four parts, of three secretaries of state, each with different powers, of two assemblies and one Parliament, each different in composition and powers from the others’ (cited in Bogdanor 2007). The implication of Hurd’s remarks was that these particular arrangements are less likely to work efficiently or positively and that the system is no longer so robust. That is the new uncertain context in which discussion of Britishness now takes place. The other chapters in this volume deal mainly with the machinery of governance while this one, by contrast, deals with the ghost in the machine: those dispositions, loyalties, sympathies, beliefs, feelings and sensitivities that together constitute a political identity. Rather than using the matrix format at the end to present alternative scenarios, this chapter deploys the axes to identify what was, what is and what may become of Britishness. It then abridges into two directions of travel the complex possibilities of the postdevolution condition. These possibilities are separation and adaptation – the 90

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first a radical dissolution of the Union, the second a modest modification of the multi-national Union.

Scenario axes: Identifying the ‘steady state’ Union The two axes along which discussion about the future of Britishness can be arranged are reasonably clear. The first is the national/multi-national axis and the second, the contract/solidarity axis. The direction of argument along these axes constitutes the alternative logics, formulae, codes and identities of nationalist separation and British integration. At the nationalist end of the first axis are located distinctive peoples – the Scots, Welsh, English and (with much less certainty) the Northern Irish – and these are ‘natural’ or ‘immediate’ personae, not necessarily only in terms of ethnicity or descent but also in terms of civic belonging. Whichever form it takes, ethnic or civic, this nationality is one’s ‘first nature’, and not only has it a prior call upon one’s loyalty but it ought also to be the basis of one’s political belonging. If this proposition of national priority constitutes the logic of separation, then the formula of separation is that the national people is the sovereign people. At the multi-national end of this axis stands the ‘constitutional’ people, an artificial persona which integrates particular national loyalties into a common political identity. It is artificial only in being ‘second nature’ – in the Burkean sense of a positive institutional achievement – and the operation of this second nature on the first produces a new combination. If that constitutes the logic of integration, then the formula of Britishness proposes that the constitutional people is the sovereign people. At the nationalist end of the second axis is the idea of contract which defines a mode of association between distinctive national peoples. Since it is contractual, it is an association that can be broken when desired – as nationalists do desire to break it. This is the code of separation, and it expresses the identity of patriotic immediacy. At the British end of this axis is the idea of solidarity, which defines an association in which the whole is greater than the sum of its parts. This is the code of integration, and it expresses the identity of patriotic mediacy, or multi-nationalism. A preliminary model of the imaginable constitutional options for the United Kingdom is suggested in Figure 6.1. Integration Rose’s ‘steady state’ was defined by an ideal integration – it has also been called a ‘mingling’ (Robbins 1998) – which presented a complex, even paradoxical union of patriotic citizenship, contractual solidarity and popular constitutionalism. It was not located in the extreme south-eastern quadrant of these axes – which would have implied an absolute transcendence of all local attachments – but rather south centrally (see Figure 6.2).

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Separatism

Independence

Federal UK

Contract

Solidarity

Confederal UK

UK nation state

Integration Figure 6.1 Imaginable constitutional options for the United Kingdom

Logic and formula of separatism · National Peoples · Popular Sovereignty · Natural persona

Code and identity of separation · Contract · Patriotic Immediacy

Code and identity of integration · Solidarity · Patriotic Mediacy

Britishness

Logic and formula of integration · Constitutional people · Parliamentary sovereignty · Artificial persona Figure 6.2 Location of the ‘steady state’

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Devolution as a modification of ‘steady state’ Union This location of Britishness provides an insight into the devolutionary strategy of New Labour. Gordon Brown argued that constitutional reform would signal ‘a decisive shift in the balance of power in Britain, a long overdue transfer of sovereignty from those who are governed, from an ancient and indefensible Crown sovereignty to a modern popular sovereignty’. This sounded a radical concession to national distinctiveness, but Brown qualified it by a vision of Britishness as ‘a community of citizens with common needs, mutual interests, shared objectives, related goals and most of all linked destinies’ (Brown 1992). Here was a modification of constitutional circumstances, a devolved but British system, albeit still nationally ‘asymmetrical’. There were four related aspects of this new United Kingdom. First, there was democratic acknowledgement of national peoples (with the exception of the English) within the constitution. Second, the democratic institutions established after 1999 provided new – but not exclusive – national locations for patriotic citizenship such as participation in elections and new public symbolism. Third, the arrangements within the United Kingdom between central and national institutions – on public expenditure in particular – took on a more transparently contractual character in that bargains had to be negotiated between administrations rather than exclusively within central government. Fourth, the key political purpose of devolution was the accommodation by containment of popular sovereign claims and the bounding of separatist tendencies. In sum, the shift in the placement of Britishness on the two axes was assumed to be marginal (see Figure 6.3). Separatism

Contract

Solidarity

Britishness

Integration Figure 6.3

Marginal shift in placement of Britishness

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There was much that was conservative about devolution, and it was a Conservative, Sir Malcolm Rifkind, who captured it succinctly. The Union was always, he argued, ‘a partnership rather than an absorption, albeit a partnership of unequals’ involving a large degree of English goodwill. ‘If the future is not what it used to be’ it should be understood as evolution rather than revolution. While ‘it may be difficult for the constitutional theorist to categorise it, the crucial question will be whether it works’ (Rifkind 1998). On balance, Rifkind thought devolution would work because it embodied both the ideal and the principle of Britishness: the ideal is multi-national solidarity and the principle is association of the willing. This remains the governing perspective. When the then Secretary of State for Constitutional Affairs, Lord Falconer, argued that constitutional change was designed to guarantee the rights of the nations and thereby help to maintain the Union, he concluded that ‘it has done exactly that. Separatists have been stymied by devolution. And support for separation has flat-lined’. The Government, he made clear, was not concerned about the question of ‘constitutional symmetry’ but was committed to the practical accommodation of ‘difference and rough edges’ (Falconer 2006). One of those rough edges was the unresolved West Lothian Question, and Labour gave the impression that it was a difference that neither could nor should be accommodated. That it could not be accommodated was a technical matter of constitutional design. That it should not be accommodated was not a technical but a national question: the English Question (see Chapter 5). Today the British questions are these: does this governing wisdom capture the present condition of Britishness? Is devolution so clearly the settled will of the Scottish people? Are the English content with national asymmetry? Some have answered no to each question, and argue that the trajectory of the United Kingdom is towards separatism and faster than many had imagined (McWhirter 2007).

The end of Britishness: The future as separation In State of the Union McLean and McMillan (2005: 256) concluded that unionism ‘always suffered from deep intellectual incoherence’. This incoherence was only ‘masked by its usefulness to politicians and its popular appeal’, and now that both had expired ‘can the Union state survive without unionism?’ They envisaged it lumbering on ‘anomalies and all, for at least a few decades more’. If in 2005 McLean and McMillan could be dismissed for being unduly alarmist, in 2007 they had good reason to point to events which appeared to confirm their analysis. The success of the Scottish National Party (SNP) in the Scottish Parliamentary elections of that year provoked some apocalyptic speculation about the future of the

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United Kingdom. Furthermore, in 2007 Sinn Féin (SF) was sharing office in Northern Ireland, while Plaid Cymru had become part of a coalition administration in Wales. According to this scenario, the intermeshing drivers of separation are the nationalisation of popular sentiment; a loss of faith in British institutions; an inversion of Rose’s notion of integration through party competition; and English resentment at the perceived financial and political inequities of devolutionary arrangements. Driver 1: The parting of public opinion In the separatist scenario, ‘British’ comes to mean an empty label while English, Scottish, Welsh and Irish mean exclusive national identity. The intellectual attraction of this notion can be traced recently to Linda Colley’s influential work Britons (1992) which argued that Britain was an invention temporarily superimposed onto much older loyalties. Because the Empire, the sense of otherness from Europe and Protestantism had all but vanished, so too had all the concrete references of British identity. As a consequence, the natural loyalties of Welsh, Irish, Scottish and English have waxed as the artifice of Britishness has waned – and they have done so, inexorably. Survey evidence can be cited to confirm these trends. The British Social Attitudes 23rd Report found evidence of decline in Britishness with fewer people willing to volunteer ‘British’ as the best way of describing themselves. Between 1996 and 2006 the proportion describing themselves as British became a demographic minority, declining from 52 per cent to 44 per cent. Though ‘Britishness has long been no more than a secondary identity both in Scotland and Wales’, the most dramatic trend was in England. ‘Already relatively weak in Scotland and Wales, Britishness now appears to have lost some ground in England to a sense of feeling English instead’. Britishness as the primary identity in England had declined from 59 per cent to 48 per cent (Heath, Martin and Elgenius 2007: 11–13). That these trends could have political consequences was made clear in other polls. In November 2006, an ICM poll for the Sunday Telegraph revealed that 52 per cent of Scots respondents favoured independence (Hennessy and Kite 2006). The ‘main driver of a feeling of attachment or belonging to Britain is age, with younger people being less strongly attached to Britain’ (Heath and Roberts 2008: 2). The Government’s response to these separatist trends, one can argue, has been disjointed and lacking in credibility. It has either recounted the old story of Whiggish providence or has reduced Britishness to a functional instrument. The speeches of Gordon Brown frequently suffer from the former defect and give the impression of a metaphysical quest for enduring British values, a quest to ‘rediscover and to build from our history’ the shared values ‘that bind us together and give us common purpose’. His questions ‘what is our equivalent for a national celebration of who we are and what we stand for?’ and ‘what is our equivalent of the national symbolism of a

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flag in every garden?’ have been thought to be very un-British, suggesting that the deformation of Britishness is well-advanced (Brown 2006; Hannan 2007). Those in Government who are addicted to a corporate marketing of national identity suffer from the latter defect, understanding Britishness as some sort of mission statement: [m]ost other countries have a national mission embodied in their constitution’ (Wills 2006). In short, the scenario predicts that ‘British’ will become entirely vacuous compared with the rich substance of nationalism. Britishness becomes dispensable as people become persuaded that popular identity should find unique expression in separate institutions. To make Britishness a political quest may actually provoke the very nationalisation of opinion it seeks to prevent (Bechhofer and McCrone 2007: 260). Driver 2: Loss of faith in British institutions This scenario identifies the loss of faith progressing to a tipping point. There is a push factor and a pull factor. The push factor is disenchantment with central government in general and with its policies in particular. At the grand level, affection for the Monarchy, Parliament, the BBC and even the NHS has been declining. At the specific level, disaffection with, for example, the war in Iraq captures both forms of disenchantment: decision-making immune to popular pressure and policy immune to public influence (see Heath and Roberts 2008: 20). The pull factor is the attraction of more responsive national institutions encouraged by the process of globalisation. According to Nairn (2007: 131–2), who synthesizes both factors of disenchantment, globalisation makes some larger states ‘irreversibly “smaller”, in the sense of rendering older styles of imperium and domination impossible’. In this new world order ‘smaller is, if not better, then at least just as good’, and it is no surprise that ‘the United Kingdom should be the one prime site’ for this to happen. Nairn gives Britishness a life expectancy of five years and even the Scottish Unionist Allan Massie (2007) fears it may struggle to survive for another ten. These predictions find support from those who look to Europe as a larger and more sympathetic association for small countries like Scotland and Wales (Jamieson 2007). Therefore, British institutions will give way to what Scottish nationalists have called a ‘social Union’, one which maintains the civic but dissolves the political bonds. British institutions, according to Margo Macdonald, now lack public esteem, but the ‘social Union’ is worth preserving ‘and should encompass all the distinct national and regional communities’, an argument that counters those who claim that separation will divide families throughout the United Kingdom (Scotsman 2007). This gives a nationalist twist to the academic interpretation of Paterson (2002: 40), who noted that changing attitudes are suggestive of ‘break-up’ but concluded that ‘there is really no reason to believe that Britain as a set of relationships among people is anywhere close to disintegrating’. A ‘set of relationships’ (social Union) will

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continue within the islands but political Union has had its day. The leader of the SNP, Alex Salmond (2007), has argued that ‘[t]he 18th-century Union is past its sell-by date’ and no longer serves any political function except to promote resentment. He thought it important ‘to retain the close co-operation we currently enjoy in terms of social, economic and cultural links’. The Scots could be persuaded of the merits of independence in a referendum, probably not in 2010, but possibly by the time of a third SNP election victory in 2015. Driver 3: Party competition – from functionalism to territoriality Rose had argued that one of the key integrative elements in the United Kingdom was the party system. The major parties (Northern Ireland excepted) helped to translate territorial concerns into the common (functional) language of British politics because to ‘give major importance to questions of national identity would distract attention from functional issues’ like health, education and economic policy (Rose 1982: 67). As questions of national identity are paid greater attention (the point made by Hurd), party competition will have the opposite effect, raising, not subduing, issues of national allegiance. For example, the Conservative Party already supports English votes on English laws, and this is the first step along the road to the party becoming explicitly what it has become implicitly for some: a party of English nationalism. To be an English party does not ‘sound like a party of government’, but this would only matter in the old British state (Hazell 2006b: 226). As the mood of separatism grows, this would be a positive advantage. Simon Heffer has argued for some time that the Conservatives should campaign on Home Rule for England. If the Conservatives in a future general election reach 265 English seats ‘they should prepare a campaign to ensure that English rights are secured, and English laws passed without interference from others’. In short, the Conservative ‘route to power is in England, and lies in creating a distinct English polity’ (Heffer 2007a). Britain has become ‘simply a geographical entity’ (Heffer 2007b), a codeword for Labour’s (Scottish and Welsh) exploitation of England. Here is one simple answer to the old conundrum, why should a party overwhelmingly English in its basis and outlook defend the Union so vigorously (Blake 1985: 361–2)? The new answer is that it should no longer do so because that sort of British ‘primordialism’ is dead (McLean and McMillan 2005: 249). It should leave the Labour Party shackled to the corpse of Britishness and condemn it to irrelevance (Heffer 2007c). Driver 4: English ‘backlash’ – the end of solidarity The other side of the Conservative factor is the English Question. There are two grievances that constitute this question, one political, the denial of English self-governance, and the other economic, discrimination in public expenditure. A prescient Leader in the Observer on 2 July 2006 thought that if ‘the English are told often enough they should feel aggrieved at the results

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of devolution, they’ll start to believe it’. They do seem to believe it now. A Sunday Telegraph ICM poll found that 59 per cent of English respondents approved of Scottish independence; that 68 per cent favoured an English Parliament; and that 60 per cent thought it was unjustified for Scotland to have a higher level of public expenditure per head of population than England (Hennessy and Kite 2006). There is a sense that the political rights of the English are being ignored, and this makes the unthinkable thinkable. In part this has to do with a cult of victimhood, recounted in the English press, which has encouraged a jingoistic style, formally reluctant to break up the United Kingdom, but if it should break up, confident that England will have 85 per cent of the men and women and can keep its money at home (see Aughey 2007: chapter 9). This mood is most notable when it comes to differences in public expenditure across the United Kingdom. What is most damaging to Britishness ‘is the fact that the devolved Scots now enjoy important perks, such as some paid-for medicines and (soon) free university education, that the English don’t – preferential treatment that violates a deep if illogical English expectation that government should treat everyone everywhere the same’ (Bagehot 2007). That it does have an effect can be shown in a sample of headlines from the local and national press in 2007: ‘Scots are laughing all the way to the bank’ (The Sun 14 June); ‘A formula for discontent’ (Northern Echo 19 June); ‘Scotland the free, England the fee’ (Cumbria News and Star 22 June); ‘£7BN tax bribe to Scots’ (Daily Express 24 June). Here is a disposition that spells the end of multi-national solidarity. In short, the English public mood will desire an end to subsidised self-determination (the English doing the subsidising and the Welsh, Scots and the Northern Irish getting the selfdetermination), and the only way to achieve this is through pushing fiscal responsibility onto the nations. The inevitable outcome will be separation, a ‘velvet divorce’ or what McLean and McMillan call the ‘Slovak scenario’, a scenario ‘driven from England’ by the perception that England is being exploited.

Summary The cumulative effect of these drivers could persuade the peoples of the United Kingdom that the ‘national popular’ provides a more authentic democratic expression than the empty shell of Britishness; that popular identity should have exclusive expression in national institutions; and that these separate institutions are more effective at delivering policy and protecting interests in the new global, especially European, politics. What is embraced is separatism as a positive goal rather than a negative consequence. What may linger is an insipid ‘social Union’, an association that by definition denies political substance to Britishness. The dynamic of this is set out in Figure 6.4 and its shape outlined in Figure 6.5.

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Opinion

Institutions

Party

England

Decline in British identity

Alienation from Westminster

Anglicisation of Conservatives

English disaffection

Growth in nationalism

Priority of devolved matters

Territorialisation of politics

National Assertiveness

‘Tipping point’ of opinion

Demands for autonomy

Conservative election win 2009

Demand for a new deal

Scots Referendum 2015/2016

Social Union

Break-up of UK system

English Parliament

Figure 6.4

Dynamic of key steps to separation 2007–2020

Separatism

Social Union

Contract

Solidarity

Integration Figure 6.5

Shape of key steps to separation 2007–2020

The new Britishness: The future as adaptation The scenario of separation is plausible, but there is good cause to be cautious. To accept its assumptions wholesale is to read British politics through the newspaper headlines, a rather dubious thing to do. Confidence in the narrative of Britishness may have waned, faith in its institutions may have declined and belief in British providentialism long gone; but these changes do not intimate the inevitable demise of the United Kingdom. Each driver of change in the first scenario has its complementary constraint in the second scenario of adaptation.

100 The Decentralised State

Constraint 1: Public opinion – continuity in change There is little doubt that the survey evidence confirms that people are more willing to volunteer the identity of Scottish or English or Welsh rather than British. Some analysts have expressed caution, however, about reading too much (nationalism) into that evidence. Miller (1998: 191–3) argued that to say that someone feels more Scottish than British, for example, ‘is not to say how much more Scottish than British they feel’. The significance of that distinction for their willingness to dispense with Britishness altogether is uncertain. And a recent attitudinal study concluded that ‘we would be surprised if the break-up of Britain were to occur in the near future’ because the sense of Britishness remains widespread (Bechhofer and McCrone 2007: 252). It was also easy for commentators, in the drama of the formation of an SNP Executive in 2007, to overlook the fact that 66 per cent of the Scots voted for parties supporting the Union. There has been no dramatic breakthrough for nationalist parties. Moreover, majorities in all parts of the United Kingdom continue to support its existence as a multi-national state and support for separatism has actually declined in Scotland from 28 per cent to 23 per cent in the period 1997–2007. In Wales support for independence has remained around the 12–13 per cent mark. There has been a growth in English nationalist sentiment but, as we show below, this is a ‘mood’ and not yet a ‘movement’. Heath and Roberts (2008: 8) concluded their survey of opinion polls thus: ‘in all three territories [they excluded Northern Ireland] a majority of residents have dual identities and there does not appear from these data to be a continuing decline in British identity or a continuous rise in exclusive national identities’ (see also Curtice 2008). Culturally, events such as the Olympics in 2012 could reconfirm a popular sense of Britishness (suggested by Goldsmith 2008); socially, Britishness can remain an identity that embraces the ethnic and national diversity of the United Kingdom; and constitutionally, the resources expended by the Government to redefine Britishness may have a popular impact. The scenario predicts a modification of circumstances as the nations of the United Kingdom adapt to the existence of devolved administrations, and here Northern Ireland, rather than being the exception, may prove the rule. Active republican subversion has given way to active engagement in a constitutional settlement that requires, at least for its financial operation, a claim of solidarity across the United Kingdom. SF ministers do not say this, but it is implied in the operation of public policy. It is a formula that also applies to the SNP and Plaid Cymru. Constraint 2: Renovating national institutions National institutions may prove more robust and flexible than separatists expect. This constructive adaptability is as much the recovery of an older

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mode of governance as a new beginning, once described as a ‘dual polity’ involving a deal between national elites and the central authorities in London ‘in which both had rights and duties’ (Bulpitt 1983: 98). Of course, this is not a literal ‘return’, but an adaptation of residues of constitutional thinking to present needs. For example, it has been argued that devolution has strengthened the democratic credentials of the nations in UK affairs rather than created ‘out of nothing an additional tier of government’. Devolution ‘does not break with tradition but simply recognises the “less than perfect” integration within the state in a new and pragmatic way’ (Mitchell and Leicester: 1999). If Britishness can no longer be secured bureaucratically – by what Nevil Johnson (2000: 121) called ‘self-administration’ – it can be secured politically, that is within the democratic arena of assemblies and parliaments, adjusted on the basis of popular politics. This involves a more open process of public and institutional negotiation and requires real political stamina. Certainly, a more formal relationship between the devolved institutions and central government will develop, especially as the informal channels within Whitehall and Westminster can no longer be relied upon. A single Department of the Nations will probably take over the duties of the three existing national departments, and the joint ministerial committee (JMC) on devolution will be revived (Riddell 2007). Change is unlikely to come by way of a comprehensive constitutional convention but step by step. That ‘is the British tradition, and is also more practical politics’ (Hazell 2007a). What is developing is no ‘social Union’ but a reformed political Union (Ministry of Justice 2007c; also Hazell 2007b). Indeed, the public’s judgement that Westminster elections are more important than devolved elections (measured by turn-out) is confirmed by data which shows that the ‘Westminster Parliament continues to be the most important source of primary legislation for each part of the country’ (Hazell 2005: 233).

Constraint 3: Parties’ interest in the United Kingdom The adaptability scenario also assumes that constraints in party competition are equally real. Despite the operation of devolved institutions, despite the prominence of nationalists in those devolved institutions and despite the different configurations of party support, there continues to exist a British political culture with which citizens across the United Kingdom identify. There have been modifications in the basis of party identification since the early 1980s, but the politics of national identity has not displaced the centrality of British party politics. Though the noises from the wilder shores of political commentary are persistent, there is no evidence that the Conservative Party leadership is seriously attracted by English nationalism. For example, Sir Malcolm Rifkind’s


proposal in October 2007 that there should be an English Grand Committee in the Commons is only a variant on the party’s long-standing policy of English Votes on English Laws, a policy upon which it contested the general elections in 2001 and 2005 (Rifkind 2007a). The justification is equity, and the objective is the rebalancing of a democratically asymmetrical Union. Yet how far could the Conservative Party push this? Kenneth Clarke’s Conservative Democracy TaskForce (2008) has ruled out Rifkind’s proposal, and in evidence to the Justice Select Committee (JSC) Clarke (2008) has described the West Lothian Question as a mere ‘niggle’, and there is no influential constituency pressing for more to be made of the West Lothian Question. David Cameron has recommitted the party to a unionist vocation and in doing so shares common ground with Labour and Liberal Democrats. The party has come to terms with devolution and has profited from electoral reform in Scotland and Wales. Conservatives may criticise Brown’s ‘enforced patriotism’, but there has developed broad party consensus that the Union contributes to the security of all its component parts; gives its citizens a more powerful voice in world affairs; best secures economic prosperity; promotes fairness through health and social policy; and has a common cultural inheritance which all can share (see for example Cameron 2007a and compare with Brown 2006). The British party system has responded reasonably well to devolution, and the functional Britishness of the parties remains an asset in the competition for power. Constraint 4: Englishness: the continuity of solidarity The absence of a self-consciously politicised Englishness continues to frustrate a separatist logic. There are obvious signs that people in England have become more willing to call themselves English rather than British, but ‘even if this proves to be a permanent shift, it does not appear to pose any threat to the stability of the Union. Rather, it appears that opinion in England has simply adjusted to the new status quo’ (Curtice and Heath 2000: 172). Though there is widespread sympathy for English votes on English laws and even an English Parliament, support for them is neither strong nor deeply rooted (Curtice 2006a: 138; Curtice 2006b). This suggests that English nationalism is a mood and not a movement. Evidence of increased English identification may suggest a nationalistic move; but it is wise to be cautious. Indeed, a five-year longitudinal study found that English identity had not developed to the detriment of British identity. Englishness was commonly constructed in apolitical terms. ‘English identity was acknowledged (and sometimes celebrated) as an aspect of personal identity, but its public expression was subject to normative constraints in the interests of civility and responsible citizenship’ (Condor 2002). There

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was little sign of that status anxiety informing the English nationalist agenda. This can be attributed to the curious mismatch between constitutional irritation and lived experience. There is indeed popular irritation at the anomaly of non-English votes on English laws and yet, because of the size and predominance of England-in-Britain, life can be led as if only England existed. This is a weakness for English nationalism in that it also allows most English people to ignore the anomalies of devolution because they appear insignificant in the wider scheme of (English) matters. Thus, on the standard multi-option question, support for an English Parliament has risen from 18 per cent in 1999 to 27 per cent in 2006, a very different perspective than the 68 per cent in the ICM poll of November 2006 (see Chapter 4). Summary The cumulative effect of these constraints will likely not contain any drive towards separation. There will be no ‘velvet divorce’ but adjustments of relations that balance the relative autonomy of national decision-making with the requirements of multi-national solidarity. There will remain a strong political and institutional dimension to the Union because that is not only the wish of the majority but also in the interests of the major parties. In particular, the Conservative Party will resist the temptation to become an English nationalist party. The English will become more self-consciously national, and the political system will respond to popular demands for its recognition. This will not take the form of an English Parliament or English independence but of changes in procedures at Westminster. The modifications are set out in Figure 6.6, and the shape of the ‘New Britishness’ is mapped in Figure 6.7.

Opinion

Institutions

Party

England

Sustained British identity

Working with Westminster

Party consensus on United Kingdom

Growth of Englishness

Limits to nationalism

Balance of national/central

Priority of functional politics

Demand for political voice

Preference for stability

Fewer demands for autonomy

Conservative election win 2013

Adjustment at Westminster

No referendum

Political union

Continuation of UK system

No English Parliament

Figure 6.6

Dynamic of key elements of adjustment 2007–2020


Separatism

New Britishness Contract

Solidarity

Integration Figure 6.7 Shape of the ‘New Britishness’

Conclusion Of course, these scenarios abstract from a complex constitutional reality. Either scenario is possible but a number of points can be made in conclusion. First, the separatist scenario is quite often the product of British politics read through newspaper headlines. Polling results are hugely dependent on the way in which the question is framed, and media-reporting of questionable polls encourages the belief that the Scots – and at times, the English – want independence. This misrepresents the state of public opinion which is less single-minded than the separatist scenario suggests. Second, there are two major dimensions to the British question, one Scottish and the other English. It is the Anglo–Scottish relationship which counts in the medium term. One could argue that the Scots are not so much hostile to things British as they are resistant to things English. This has given a distinctive flavour to expressions of Scottish nationality and, more significantly, has influenced the character of popular Scottishness. Scottish politics owes a lot to the sympathy still felt for British institutions, a sympathy not necessarily contradicted by devolution or even by feeling more Scottish than British. The prickly engagement with England (which is not new) does not undermine that sympathy. This ballast of opinion looks set to sustain a common political identity beyond 2020 even if there will be policy differences and ideological difficulties between Ministers at Holyrood and Westminster. England has experienced a real, and not imaginary, interpenetration of things British and things English. It is the openness of the civic identity

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attaching to British England, which nationalists claim to be its weakness, that others have found to be its attraction – an identity appropriate to the complex of nationalities and ethnicities inhabiting the islands, most of whom actually live in England (Alibhai-Brown 2007; Fenton 2007; Jacobson 1997). The future of Britishness, as two Government Ministers argued, lies not in assimilation to a ‘mono-culture’ but in developing ‘a stronger sense of why we live in a common place and have a shared future’ (Kelly and Byrne 2007: 11). There is still life in that notion, and it is the basis of multi-national solidarity and integration. In sum, devolution has transformed Britishness into a permanent conversation about political and cultural questions, ones that cannot be answered definitively. Not only politicians but also the people must want to continue that conversation. For the moment they do (despite the SNP’s attempt to promote a separate Scottish conversation), and that is likely to remain the case into the foreseeable future.


Part II The Central State


7 The Judiciary Andrew Le Sueur and Kate Malleson

Drivers of change The judiciary is generally regarded as one of the most stable institutions in the British constitution. Yet in recent decades the judiciary’s relationship with the Government and Parliament has undergone significant change. Moreover, the pace of that change is, if anything, increasing, and it is likely that further significant shifts in the role of the judiciary will occur between now and 2020. This chapter seeks to identify the drivers of that change and to speculate on the possible form and direction that developments will take. The three areas in which change is occurring are the powers of the judiciary, its governance structure and the external perceptions of its role and legitimacy. Powers The courts have always had an important role to play in defining and protecting individual liberties, subject to the overriding principle of the sovereignty of Parliament. This role has, however, increased significantly in the last 30 years. The combination of the European Communities Act 1972, the expansion of judicial review in the 1980s and 1990s, the passage of the Human Rights Act 1998 (HRA) and the devolution legislation has given the judges a much extended role in scrutinising and checking government decision-making and applying human rights standards. The relative weakness of Parliament in fulfilling its traditional role of checking government abuse of power (by both Conservative and Labour ministers) has led the judiciary to be perceived at times as the unofficial opposition (Le Sueur 1996). Evidence of this growing role is found in the fact that the courts have become a magnet for campaign groups seeking to intervene in public interest litigation (O’Cinneide and Arshi 2004). A critical question for the coming years is whether this trend will continue or whether the pendulum will swing against this transfer of power from political to judicial decision-makers. The answer will be determined 109

110 The Central State

partly by constitutional relations external to the judiciary – particularly the relationship between Parliament and the Government – and partly by the attitude of senior judges to their role. Much will depend on the developments in rights protection in Britain in the next decade (see Chapter 10). In response to court rulings against successive governments in sensitive areas such as the rights to detain terrorist suspects without trial or to deport failed asylum seekers, both senior Labour and Conservative politicians have expressed frustrations at the operation of the HRA and what they see as increasing ‘judicialisation’ of political issues. For the Conservatives, David Cameron, has gone so far as to argue for the repeal of the HRA. As it lacks any entrenched status, there is nothing to prevent its repeal if there is sufficiently strong political opposition to its provisions – though so long as the United Kingdom remains a member of the Council of Europe (a condition of membership of the EU), the European Court of Human Rights will remain a long-stop for those wishing to challenge UK Government decisions and legislation. Yet there are also developments pulling in the opposite direction. In the Lisbon Treaty signed in December 2007, the United Kingdom (along with Poland) negotiated a protocol seeking to clarify beyond doubt the limited impact of the EU Charter of Fundamental Rights, with the aim of ensuring that despite its new legal status neither domestic nor the European courts have any new powers to strike down or reinterpret UK law (House of Lords Constitution Committee 2008). There are however internal pressures which suggest that the trend will be towards greater, rather than less, judicial power in the area of human rights. Paradoxically, the controversy over the HRA has led to renewed interest in a British bill of rights, which according to some proponents can only take the form of the European Convention on Human Rights (ECHR) ‘plus’ other rights (JUSTICE 2007). The Ministry of Justice is due to publish a green paper on a proposed Bill of Rights and Duties (BoRaD) in 2008. The Conservatives have also expressed support for replacing the HRA with a British bill of rights, provided it includes greater emphasis on responsibilities as well as rights. Judiciary and court governance The second aspect of the evolving constitutional relations is the formal governance arrangements through which each branch of the State interacts with the other. The principle of ‘independence of the judiciary’ is misleading if it is taken too literally. No one suggests that judges and courts can operate without the administrative and financial support of the executive branch of the State, which in turn must be accountable to and derive its powers from Parliament. The basic methods of interaction between the judiciary and the other branches have changed considerably in recent decades. Until April 2006, when provisions of the Constitutional Reform Act (CRA) 2005 came into force, the office of Lord Chancellor was a linchpin. His role allowed the

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judiciary to function with relatively weak internal governance structures. The CRA substantially redefined the Lord Chancellor’s role and put in place a new form of partnership between the judiciary and the Government. The role of head of the judiciary was transferred from the Lord Chancellor to the Lord Chief Justice of England and Wales (LCJ), and an agreement known as ‘the concordat’ set out a system of consultation and joint decision-making in areas such as judicial discipline and court management, setting in place a new leadership structure. At the same time the once-dormant Judges’ Council was revitalised to act as a body representing the views and interests of each tier of the judiciary in England and Wales. At present the Council has no constitutional status, but it is quite possible that in the future the Government may be required to consult with the Council on a range of matters relating to the courts and the judiciary. The creation of the Ministry of Justice in May 2007 provided the first serious test for the new arrangements. Judicial fears that the new Ministry would leave the courts vulnerable to budget erosion (particularly at the expense of prison funding) led senior judges to negotiate at arm’s length with government, and to report their frustrations to parliamentary select committees and to the public via speeches and press releases. Lord Phillips, the LCJ, made it known that he was close to exercising his power under CRA section 5 to lay a written representation to Parliament, something a few months earlier he had described as ‘the nuclear option’. However, it turned out that s. 5, far from being a weapon to be deployed only in times of extreme crisis, was a useful tool in making known the concerns of the judiciary on a more regular basis through an annual report, the first of which was made in March 2008 (Judiciary of England and Wales 2008). In the past, budget-setting and staffing decisions in relation to the courts have been strongly controlled by Government rather than the judiciary. In the light of the creation of the Ministry of Justice the judges during 2007 argued for greater autonomy, citing examples of devolved budgets and court administrations with independence from government in other jurisdictions. In January 2008, negotiations between the Government and judiciary ended with a ‘new partnership’ – which the judiciary conceded was ‘not as far reaching as the autonomous administration responsible to the judiciary in Ireland or the proposed system in Scotland’ (Judiciary of England and Wales 2008). The day-to-day relationship between them will depend on how, in practice, the new leadership arrangements set out in the concordat work. Will there be harmony or conflict? Will joint decisions be made in private or public? The answers may depend to a great extent on the future personalities who occupy the posts of LCJ and Lord Chancellor. Until June 2007, the latter has always been a senior lawyer of high repute appointed after a long career in practice who sat in the Lords. In Gordon Brown’s first Cabinet, Jack Straw (a non-practising barrister) became the first Secretary of State for Justice/Lord Chancellor to sit in the Commons. Future Justice


Secretaries/Lord Chancellors may have no background in the law and may well be mid-career politicians with their eyes on promotion. The dynamics of the relationship between the senior members of the Government and judiciary are therefore likely to be very different in the future. A key test of the new relationship will be the workings of the Judicial Appointment Commission (JAC) for England and Wales, which started work in 2006, and the ad hoc selection commission which will be formed when UK Supreme Court vacancies arise. In October 2007 the Ministry of Justice launched a consultation on reform of the appointments process, including the possibility that the Lord Chancellor should cease to have any discretion to call upon the JAC to ‘think again’ about a nomination and that Parliament might have some role in confirming appointments (Ministry of Justice 2007c). The Draft Constitutional Renewal Bill 2008 duly proposes to remove the discretion of the Lord Chancellor to reject or seek a reconsideration of appointments below the High Court (and the Prime Minister’s entirely formal role in the most senior appointments), although it does not take forward the proposals for any parliamentary involvement in the process. This latter issue is, however, likely to continue to attract attention given the reduced democratic accountability in the judicial appointments process.

External perceptions of the judiciary The final aspect of the analytical framework is more amorphous and relates to changing attitudes and perceptions of the judiciary and its role. On the part of the judiciary, there has been a growing openness and willingness to engage with the public to try to explain how the courts work. The judges have understood that greater judicial power leads to more controversial decisions and the potential for a drop in the high levels of public confidence which they have enjoyed to date. They are also acutely aware that the media plays a vital and growing role in influencing public perceptions. Whereas in the past journalists were generally deferential, they now often see judges as legitimate targets. Judgements under the HRA have been a particular subject of criticism in the tabloid press, with some being reported in grossly distorted or inaccurate terms as ‘barmy’ or dangerous or both. It remains to be seen whether the Government’s attempts at ‘myth busting’ to correct public misconceptions about human rights will be successful (Department for Constitutional Affairs 2007a). This initiative is somewhat weakened by the fact that Ministers for their part (especially some – but not all – Home Secretaries) have felt willing and able to make robust public criticism of particular judges and judgements. This can be traced back to Michael Howard’s tenure at the Home Office during the mid-1990s, when the Government was subject to a series of defeats in the courts in relation to the lawfulness of policy. David Blunkett and John Reid were no less ready to enter the fray (Le Sueur 1996). The judiciary has gradually come to realise that


they cannot rely on self-restraint from the media or the protection of politicians but must themselves work to correct misconceptions. Lord Mackay of Clashfern, in one of his first acts as Lord Chancellor in 1987, revoked the ‘Kilmuir rules’ which had limited the ability of judges to speak to the press and broadcast media. The appointment of Lord Taylor of Gosforth as LCJ in 1992 continued the trend of greater openness, in the form of press conferences, lectures and even appearances on television. Senior serving judges have also on occasion been more willing than in the past to make critical comment on government policy outside the confines of the courtroom. The provisions of the CRA took this trend a stage further with the creation of a new Judicial Communications Office which has the role of guiding the judiciary through the media minefield. This new phase has not, however, ushered in quite the level of engagement that some expected, and during 2007 some journalists called for more opportunities to question judges (House of Lords Constitution Committee 2007a). On the part of Parliament there has been a developing sense that senior judges are important public figures and an expectation that they be invited to appear before select committees to give evidence on the operation of the justice system. In the past, parliamentary interest in judiciary-related matters has been patchy. The Lord Chancellor’s Department – a forerunner of the Department for Constitutional Affairs and the Ministry of Justice – was one of the last major parts of the Government to be subject to scrutiny by a House of Commons departmental select committee. More recently, the Constitutional Affairs Committee (now the Justice Committee) in the House of Commons and the Constitution Committee in the House of Lords have conducted inquiries into aspects of the judiciary and courts. In October 2007, Lord Phillips LCJ announced that he would on behalf of the judiciary of England and Wales make an annual report, which will be laid before Parliament, and the first such report was made in March 2008 (Judiciary of England and Wales 2008). By comparison with many other common-law judiciaries such as the USA, Canada and South Africa, UK judges are still relatively low-key in seeking to influence perceptions of the public or engage dynamically with the other branches of government. As the judiciary, headed by a more powerful LCJ, develops a stronger internal collective voice through the Judges’ Council, this may change and a more proactive attitude towards shaping perceptions of the judiciary may emerge. A key variable in this process of change will be whether or not the new UK Supreme Court (due to begin work in October 2009) develops into a body with a high public profile or seeks to perpetuate the anonymity of the Law Lords. In addition, the question of the unrepresentative composition of the judiciary is likely to be a key issue in the years ahead. The lack of diversity in all ranks of the judiciary was a driving factor in the creation of the JAC, and its work will be watched closely to see whether it can create a more demographically reflective judiciary. Its


early appointments have been notable for their relative lack of diversity and, unless future appointments rounds show some change, public perception of the judges as ‘out of touch’ and lacking legitimacy is likely to grow stronger.

Possible future scenarios The drivers of change identified above provide the basis for constructing some possible scenarios for the future development of the judicial role and its relationship to the other branches of government. These drivers can be analysed using the following two axes. The first is common to many other areas of change in the British constitution while the second is specific to the judiciary (see Figure 7.1). Political constitution versus legal constitution The terms ‘political constitution’ and ‘legal constitution’ describe the relative authority ascribed to the legal and political decision-making processes within the constitution (see Chapter 1). The defining features of a constitutional system broadly described as political are that the sovereign power of Parliament is paramount and electoral authority is the first and foremost test of legitimacy. Political decision-making is taken by those who are open to public criticism and can be removed through the ballot. The principal justification for a political constitution is that political problems must be solved through political processes. It follows from this that courts Consensual decision-making

‘Back to the Future’

‘A problem shared is a problem halved’


Legal constitution

‘Dialogue of the Deaf’

‘Judges on Top’

Unilateral decision-making Figure 7.1 Possible developments of the judicial role


have a limited role to play in determining issues which have major publicpolicy implications. In particular, entrenched rights documents have no place in a constitution which is strongly political on the grounds that what are truly questions of politics and economics are presented as questions of law. By contrast, a legal constitution is one which affords a high degree of authority to rights as interpreted by and applied through the courts. The need to check the potential abuse of elected ‘dictatorship’ and to protect minority views is recognised through the development of a full system of administrative law and rights jurisprudence. In a legal constitution, the courts are co-equal branches of the government, taking their place beside the elected branches as upholders of constitutional norms and values. This role is most fully developed in a system based on written constitution. This axis has emerged as a defining framework around which different conceptions of the constitution have developed. In broad terms, the trend to date has been a move along the axis from the political to the legal constitution. As a key organising principle for understanding the relationship between the judiciary and the other branches of government in the United Kingdom, future scenarios concerning the role and function of the judiciary must inevitably utilise this axis. Consensual versus unilateral approaches to decision-making This axis presents an alternative means of conceptualising the relationship between the judiciary and the other branches of government. Concerned less with the distribution of power between the legal and political organs of the state, it articulates the nature of the engagement between them. At the consensus end of this axis, the judiciary works in partnership with the Government and Parliament. In a consensus-based system, the elected branches develop policy and pass legislation in consultation with the judiciary, particularly in those areas which relate to the constitution, the courts, the judiciary and the justice system. Changes to these areas are negotiated between the branches. A high degree of deference is shown by each institution for the other and self-restraint is a widely respected constitutional norm. When tensions do occur, they are resolved through negotiation and consultation. The processes used for settling disputes between the judges and politicians may derive from informal conventions and understandings or may be established on a statutory or constitutional basis. In a consensus-based system, the boundaries between the branches of government may be more fluid, and change is mediated on an ad hoc basis. The public has a relatively limited role in the process and the media is used by both in a sparing way to impart information rather than to bolster a particular position. At the other end of the consensus–unilateral decision-making spectrum, the judges and elected branches see themselves as separate organs of state


representing distinct spheres of constitutional power. Judicial independence is envisaged in collective rather than individual terms, and the judiciary accepts that it must take primary responsibility for defending the principle. Politicians will openly criticise judges for reaching decisions which they perceive to undermine their policies, and the collective commitment to the rule of law will rarely act as a check on Government attacks on the judiciary. As a consequence, the judiciary requires and develops its own institutional structures through which it can best defend its independence and fight for the effective resourcing of the court system. Consultation between the Government and judiciary on relevant policy matters is limited or token, and the judges expect to have to respond publicly and confrontationally if decisions are taken which they consider threaten the effective running of the justice system or the independence of the judges.

‘Back to the Future’: Political constitution and consensual decision-making This scenario is marked by a retreat from judicial activism and the judicialisation of politics. Parliamentary sovereignty – the untrammelled legal power of the UK Parliament to make and unmake any law – has been reasserted

The rejection in a referendum of the British Bill of Rights and Duties (BoRaD) and the subsequent ‘Who runs Britain?’ debates (Government? the courts? Europe?) were bruising for all concerned. In the conciliatory atmosphere that followed, people on all sides accept that we can live with the HRA, now that the courts understand the need for new degrees of deference to political decisions in the fields of counterterrorism, border control and allocation of scarce resources. For their part, courts in the United Kingdom have not failed to notice the trend against judicial activism in top-level courts in several other jurisdictions in the face of the national security and economic problems that face the world. Judges as well as politicians speak of the need for a ‘proper balance’ between rights and responsibilities. In a rare interview, the President of the Supreme Court captures the prevailing mood when she speaks of ‘a new partnership – realism if you like – based on mutual respect between government and the judges’. The LCJ, in contrast to his immediate predecessor, takes the view that ‘judicial leadership means first and foremost being a judge’. He has no appetite for administration and spends as much time as possible in court. With severe cut-backs in public spending in all areas, the LCJ knows there is little point in seeking a greater share of the cake for the court service. The creation of a separate Department for the Courts headed by the Lord Chancellor – now a ministerial office separate from that of Justice Secretary – is widely credited with contributing to the new mood. The Lord Chancellor (a former law professor and non-practising barrister) has managed to smooth many of the anxieties within government and the judiciary by patient, behind-the-scenes negotiations on all the key issues, including the court budget.

Figure 7.2 ‘Back to the Future’: Illustrative narrative


as a main characteristic of the constitution and few mainstream politicians any longer choose to emphasise human rights even though the United Kingdom remains a member of the Council of Europe. A period of economic retrenchment along with calls for effective accountability for public spending has ended any suggestions that court administration and funding ought to be led by the judiciary; the Ministry of Justice remains firmly in control. The Lord Chancellor encourages quiet, behind-the-scenes negotiations and works actively but co-operatively with the JAC to pursue diversity policies. Appointments to the UK Supreme Court are of justices with backgrounds in commercial law, few of whom have ever ventured public opinions outside the court room. In Parliament and in the news media, judiciary-related issues have become a backwater with relatively little interest shown in the LCJ’s annual report. Senior judges have as low a public profile as they did before the 2005 reforms (see Figure 7.2).

‘Dialogue of the Deaf’: Political constitution and unilateral decision-making In this scenario, the HRA has been amended to restrict its impact, contrary to the wishes of the judiciary. A politically astute and relatively high-profile senior judiciary had asserted their views publicly, but with little success in persuading Government, Parliament or the general public that human rights and judicial review could assist the country’s ills. The amendment of s. 3 of the HRA means that Convention case law from Strasbourg can be relied on only in cases of ambiguity. And the repeal of s. 4 of the HRA ends any doubt that parliamentary sovereignty is the keystone of the constitution. As with ouster clauses in years gone past, the judiciary try hard to devise ingenious methods for circumventing the new restrictions. With judiciary–Government relations at an all time low, thoughts turn to a radical reform of ‘the concordat’ and the structure of the CRA 2005. On the agenda is a proposal that the office of Lord Chancellor should be abolished, as defending the independence of the judiciary is now a role the judiciary can and should perform for themselves. The judicial appointments process is a source of continuing tension between the Government and judiciary, not least because of plans that the influence of the senior judiciary over senior appointments – a compromise included in the CRA 2005 – should end. Post-appointment hearings before a parliamentary committee show no signs of becoming a clash of party politics, but they do provide judges with an opportunity to explain their concerns to MPs (though there is little sign that the Government takes any notice of what is said). The wholly elected House of Lords has robbed the judiciary of their voice within Parliament, as no retired judge has successfully stood for election (see Figure 7.3).


The judiciary and their supporters in the so-called ‘court party’ (as some journalists dub them) continue to smart from the amendment of the HRA. The campaign against the change (though ultimately unsuccessful) made the judiciary more confident about using the news media and appealing directly to Parliament. The LCJ, having deployed the ‘nuclear option’ of a written representation to Parliament (under CRA s. 5) on several occasions, now recognises that this ‘weapon’ is a useful one tactically. The LCJ has more than once reminded the Lord Chancellor of his statutory duties to defend judicial independence and the rule of law; the Bar Council and the Law Society have threatened litigation to enforce those duties. But the senior judiciary recognise that they must, in reality, now stand on their own feet and defend and explain their roles for themselves. Their expectations of what can be achieved by a ‘here today, gone tomorrow’ Lord Chancellor – the second middle-ranking minister with no background in the law to hold the post – have been scaled down. But relations between the judiciary and Government go from bad to worse, when out of the blue the Secretary of State for National Security makes a keynote speech announcing that the Government has carried out a review of the continuing role of the Lord Chancellor and will be bringing forward proposals for the abolition of that office, as part of a package of reforms including changes to the role and remit of the Law Officers. (The judges had, once again, not been consulted.) Outside the court room, several senior judges have written and spoken of their dismay about the lack of respect for the rule of law and other constitutional principles in the Government’s approach to policy-making.

Figure 7.3 ‘Dialogue of the Deaf’: Illustrative narrative

‘A problem shared is a problem halved’: Legal constitution and consensual decision-making In this scenario, the Government, Parliament and judiciary have come to have a strong sense of shared values about the importance, scope and implementation of human rights norms. The British BoRaD, aided by an effective programme of citizenship education in schools, trade Unions and professional bodies, has become a popular piece of legislation. Despite some initial concerns that the provisions in BoRaD dealing with duties and responsibilities would undermine protection of Convention rights, almost everyone now regards this new charter of rights as highly effective. There is also optimism about an innovative procedure under which the Government or a parliamentary committee may seek advisory declarations from a court on the application of BoRaD to bills proceeding through Parliament – allowing access to a judgement of the court about compatibility sooner rather than later. Meanwhile, detailed drafting work on a written constitution continues. The judicial appointments system for England and Wales introduced by the CRA is viewed by almost everyone as a success. Initial concerns from the judiciary and the legal profession that ‘traditional’ candidates would be deterred from the bench have evaporated. The hopes of those who called for a judiciary more reflective of modern British society are slowly but surely


In their jointly-authored article ‘20 years of rights and justice’ in a Sunday newspaper, the LCJ and the Lord Chancellor/Secretary of State for Justice express pleasure that 20 years after the HRA came into force, and 10 years after the British Bill of Rights Act 2010 was enacted, the Constitution of the United Kingdom (the new written constitution) finally comes into force. They note the change in public attitudes to human rights over the past two decades, from disinterested scepticism to popular ‘ownership’. Their article also dismisses criticisms that the British bill of rights lacks teeth because courts still have no power to strike down primary legislation (only declare it incompatible): in 20 years, the Government and Parliament have taken action to remedy every single declaration of incompatibility made under the HRA and the British Bill of Rights Act, and there is now a firm constitutional convention that they will do so. Following recommendations of a parliamentary select committee, the judiciary and government have successfully negotiated a new concordat on the rule of law and judicial independence. This has been debated and approved in Parliament. In it, the Government undertakes to ensure that the rule of law and other constitutional principles are respected in policy-making and to allow sufficient time for pre-legislative and legislative scrutiny to ensure that bills comply with the rights enshrined in the British Bill of Rights and Duties Act.

Figure 7.4

‘A problem shared is a problem halved’: Illustrative narrative

being fulfilled. The legal profession, judiciary and government all agree that the JAC should be entrusted with the task of choosing the best candidates without the need for a ministerial veto (which in any event has never been exercised). Initial anxieties about the introduction of post-confirmation meetings of the most senior judges and a parliamentary committee have evaporated: everyone, the judges included, now recognises the value of such hearings as a channel of communication between the judiciary and parliamentarians as well as having an important educative role about the function of judges. In relation to court administration and funding, the Government has come to accept the need for greater judicial involvement in decisionmaking, and, for their part, the judges have accepted the need for effective accountability (see Figure 7.4).

‘Judges on Top’: Legal constitution and unilateral decision-making In this final scenario, there is a decisive shift towards greater judicial power in the constitution, brought about by the courts. In a landmark ruling, the UK Supreme Court modifies (or runs a coach and horses through, depending on one’s view) the doctrine of parliamentary supremacy: courts may now disapply provisions in UK Acts of Parliament which are incompatible with fundamental rights recognised by the common law. In a double whammy, the European Court of Human Rights rules that s. 4 of the HRA (a mere


declaration of incompatibility of statutory provisions incompatible with Convention rights) fails to provide an ‘effective remedy’ for the purposes of Art. 13 of the ECHR. Parliament reluctantly (and the Government even more reluctantly) agrees to amend the HRA to permit courts to quash any part of an Act of Parliament that does not meet the Convention right requirements. The shift towards greater judicial power is not unique to the United Kingdom but a world-wide phenomenon: there is a ‘global community’ of senior judges who meet formally and informally to exchange ideas and explore possibilities for developing common approaches. With the courts a site of so much influence in the policy-process, campaign groups now actively seek out opportunities to intervene in cases to present courts with evidence and argument. This is an era of significant controversy about judicial appointments (based on territorial factors and moral views of candidates). Combative confirmation hearings in Parliament are bruising affairs for candidates. Few people now believe that the Lord Chancellor can be effective in defending judicial independence – the judges can do that themselves. Senior judges are relatively well-known public figures, often appearing in the news media to argue their cause (see Figure 7.5).

In her autobiography, and in a long interview on the BBC TV programme ‘Newsnight’, the President of the UK Supreme Court has recently explained her feelings on what she calls ‘the Marbury v Madison moment’ in which in 2019 the court held that – as a matter of common law – a statutory provision ousting the jurisdiction of the courts was invalid. While the 6:5 judgement of the court has prompted huge amounts of academic analysis and comment in the broadsheets (‘The End of Parliamentary Supremacy’ the headlines say), the Government has sought to downplay the significance of the judgement, describing it as a case on its own particular facts. The Government’s relatively neutral response can be explained, at least in part, by the fact that the provision struck down had been steered through Parliament by the previous administration in the face of much criticism. Ministers are however conscious that this is the second constitutional change forced on them by judges in recent years. It follows on the heels of a judgement of the European Court of Human Rights that HRA s. 4 declarations of incompatibility failed to provide an ‘effective remedy’ for the purposes of ECHR Art. 13; the amendment to s. 4 will shortly come into force, permitting UK courts to set aside any statutory provision that is incompatible with Convention rights. The timing of these two developments will enable them to be considered by the commission responsible for bringing forward the final text of the draft Constitution of the United Kingdom, soon to be debated in the House of Commons and the House of Senators before being put to a referendum of the people of the three parts of the United Kingdom (England, Wales and Northern Ireland). The Lord Chief Justice of England (LCJE) has been unusually silent on all these matters of constitutional change. One reason, no doubt, is that he knows that his opposite numbers in Wales – which is still finding its feet as a separate jurisdiction –

Figure 7.5 ‘Judges on Top’: Illustrative narrative

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and Northern Ireland do not share his views. He also knows that views within the Council of the Judiciary (the statutory body that now represents the views of judges in all parts of the UK) are divided on the wisdom of these reforms. And, privately at least, he has been stung by criticisms in a recent House of Senators scrutiny committee report highlighting how infrequently he sits in court and gives lead judgements. He wishes that the report had acknowledged modern realities – the LCJE’s leadership and administrative roles are now effectively a full-time job. His Director of External Relations, one of 23 staff in the Judicial Communications Office, has drawn up a news management strategy which recommends that interviews – including a BBC Radio 4 debate with the Minister for Justice – should be led by another senior judge. In any event, the LCJE has other pressing problems on his plate. Following ‘efficiency cuts’ on magistrates’ courts and county courts imposed by the Ministry of Justice without proper consultation (say the judges), district judges are on what is in effect a ‘work to rule’. One judge has commenced judicial review proceedings to challenge the Ministry’s decision. It remains to be seen whether this will be a catalyst for the change that judges for many years have been campaigning for – a ring-fenced court budget and a Court Service agency working at arm’s length from the Ministry. For the time being at least, the policy of successive governments – that ministers accountable to Parliament must make financial decisions about the courts – seems to be holding. The UK Supreme Court has taken its place as a key member of the increasingly powerful global community of supreme courts and constitutional courts as evidenced by the fact that the President of the Supreme Court was appointed the first head of the new International Council of Supreme Court and Constitutional Court Justices. Everyone involved in English judicial appointments and those for the UK Supreme Court is hoping for quieter times following the upheavals and controversies of recent years. The two Supreme Court vacancies following Scottish independence created the opportunity for a bruising stand-off between the UK government and the Northern Ireland Executive (backed by the Northern Irish member of the selection commission) over the candidature of a senior judge from the Republic of Ireland for the post. The filling of the other vacancy was no less gruelling, prompting for the first time a bad-tempered and combative post-confirmation hearing before the House of Senators Judiciary Committee (in place of the well-mannered, if rather self-congratulatory, affairs of years gone past). Many people have been reading the undoubtedly brilliant Justice’s judgements closely for signs of the influences of his ‘entirely private views’ (on multi-culturalism, family values and the sanctity of all human life) about which he refused to answer questions from Senators; so far his judgements on marine re-insurance and corporation tax have provided little to go on. About one matter there is general, if rather grudging, agreement: the Government’s decision to abolish the office of Lord Chancellor in 2015 (transferring most powers and duties to the Minster for Justice) has had very little detrimental impact. The senior judiciary have proved themselves quite capable of defending judicial independence for themselves, helped in part by the decision of three senior judges to take early retirement from the bench to take up appointments as Senators, from which position they have offered astute and even-handed comment on several rule-of-law issues as well as acting as a voice in Parliament for the judiciary.

Figure 7.5

(Continued)


Conclusions: The relative likelihood of the scenarios In order to breathe life to the scenarios, we have provided more detail than we would claim to be able to predict at this distance. Nevertheless, the events and outcomes described are all quite plausible given the identifiable set of drivers and the knowledge we have of changes in the pipeline. Not all four scenarios are, however, equally likely. ‘Back to the Future’ and ‘Dialogue of the Deaf’, in which we see a revitalising of the political constitution, amount to a reversal of the general constitutional trend of the last 30 years or so. Given the increasing interest across the political spectrum in a written constitution of some kind and the growing role of courts and rights-based decision-making around the world, both the external and internal pressures make such a change of direction unlikely. If we assume that judicial power will grow, albeit perhaps unevenly, the key issue is whether this judicialisation will develop in the context of constitutional relationships which fosters consensual or unilateral decisionmaking. To date, the trend has been towards greater tension between the branches of government and the creation of more independent decisionmaking structures within the judiciary which suggests a tendency towards unilateralism. On the other hand, the partnership model set out in the concordat provides the basis for more consensual decision-making. Given the presence of drivers pointing in different directions, it is possible that we may see a variation on the scenarios described above with some areas of the relationship being marked by tension and conflict and others by partnership and joint decision-making. The balance between the two approaches may also shift, perhaps very quickly, depending on the personalities of the particular LCJs, Lord Chancellors and Presidents of the Supreme Court, as well as the wider political context in which the judiciary is operating at any one time. This more complex picture is also more likely if we continue to see a growth in the number and importance of quasi-independent bodies such as the court service and judicial appointment commissions which operate at arm’s length from each branch of government and which mediate the different interests of the judges and the elected decision-makers. Such bodies represent a move away from the traditional modes of decision-making by informal and personalised interaction between the senior members of the Government and judiciary, but they also allow for the two branches to come together as members of the new bodies and so to share decision-making within this more formal structure.

8 Whitehall Scott L. Greer

Not all countries consider their civil service to be part of their constitution, but the United Kingdom typically does. Perhaps it is because the United Kingdom, free from a fixation on the contents of a written constitution, can be more realistic about the scope of ‘constitutional’ law. But it is also because the UK civil service plays a crucial role in the rules of government that a civil service need not play in other countries. On one hand, it is a check on government: the existence of an impartial civil service provides an assured conduit for good advice, while civil servants also have some capacity to stand up to ministers without paying a price. On the other hand, it is an agent of territorial unity, providing layers of interconnections and ‘common ways of working’. The traditional model of Whitehall stands between the north-west and north-east quadrants of our graph, combining strong central powers with a balance between a political and legal constitution (see Figure 8.1). But it is now under considerable pressure. The Home civil service as it exists today has already moved a long way from the Whitehall of textbooks and repute, becoming more politically responsive and less territorially unified. The key drivers of change for the civil service push it towards the southwest quadrant: highly political and fragmented along territorial lines. The Brown government has tried to nudge it with a turn towards a more codified legal status for the fragmenting civil service (Ministry of Justice 2008a); this means that in the short run it is moving south-east towards a fragmented civil service in a more legal constitution. In the middle- and long-run, and by 2020 in any case, it will have resumed its south-western trajectory. This is because the codification necessarily only addresses one relatively small part of the changes in the civil service – and once again shows the political consensus supporting its increased fragmentation and political responsiveness overall. Politicians of both parties over decades have wanted the civil service to be their tool more than their guardian, and are reshaping it accordingly. 123



Traditional Whitehall Model


Legal constitution

Political Adaptation

Codifying the Present

Dispersal of power Figure 8.1 The civil service: Scenarios and direction of travel

Drivers of change Figure 8.2 describes the classic Whitehall model in summary form (excellent reviews are Bogdanor 2003, Burnham and Pyper 2008, and King 2007: 215– 48 and Richard 2007). The civil service has been moving away from this model for years. If we can write the history of the civil service to the 1980s as one of unification, generalism, and increased numbers and responsibility, we can write its subsequent history as one of fragmentation, first internal and then territorial. Increased political responsiveness and managerialism is a response to decades of pressure from politicians to ‘deliver’ more and do it better. Internal fragmentation is a consequence of changed demands for delivery. Territorial fragmentation, always latent in the territorial offices (Scotland, Wales, and Northern Ireland Offices), is now far more important than before 1998. Pressure from politics One of the major justifications for the classic Whitehall model of a civil service is that it makes politicians’ lives easier by giving them an expert corps of officials who are ready and able to support them. Untroubled by the need to appoint their own staff, they are able to plunge straight into policy-making, secure in the knowledge that their boxes, speeches, policy options, and diary will be properly organized for them. This is, in principle, an excellent combination of personal loyalty (to the politician) and the mobilization of skills possible in stable bureaucracies (Campbell and Wilson 1995).

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Nonpartisanship What is distinctive about the Whitehall is the importance of nonpartisanship at the top. There are many civil services that have strict nonpartisanship rules for average employees but a high degree of formal or informal political engagement at the top. In Whitehall systems, by contrast, the entire civil service hierarchy, up to its apex where it meets the politician in the private office and the top officials, is traditionally nonpartisan. This nonpartisanship makes it possible to think of the civil service as a check on government and consequently part of the constitution. Meritocracy Meritocracy means principally admission and promotion by ability. This was originally born as a response to the pressures of patronage, and meant the insulation of jobs from political preference. It meant examination-based entrance followed by promotion through performance evaluations carried out within the civil service. The UK is distinctive because of the extent to which it is applied at the top. Ministerial responsibility Ministerial responsibility is a third major component of the Whitehall model. Ministerial responsibility means that ministers are responsible for the decisions of their departments. In theory, this means that officials canvass all reasonable options and put them to the minister for a decision. It makes accountability clear and eases nonpartisanship in the civil service by detaching them from ultimate responsibility for decisions. But it means politicians are held responsible for maladministration in giant organizations they cannot always control. Viewed in most countries as a problem or necessary evil of public administration, in Whitehall systems this accountability mismatch is elevated to the status of a constitutional principle. Secrecy Secrecy logically comes with this desire to clarify accountability for decisions and obscure accountability for advice, on the grounds that elections are accountability enough. The evolution of secrecy issues is discussed in Chapter 11. Unity Unity means that civil servants are defined by their membership in the UK civil service rather than their departmental or territorial affiliations. The unified civil service grew principally as a response to the challenges of enacting policy amidst recalcitrant islands of bad administration and the challenges of weeding out corruption – both in the name of good public administration and because the pressures for patronage overloaded MPs and governments. With unification comes generalism: only if we believe that there are general civil service skills (policy and management) can we believe that it is appropriate to have one career ladder span education, prisons, and EU infrastructure fund in Cornwall. Unity has a relatively simple indicator: the strength of internal labour markets. We know that the Navy or the Catholic Church – or McKinsey Consultants – are unified because they promote internally. The civil service is unified to the extent that its jobs are filled from within by generalists.

Figure 8.2

Defining the Whitehall model

Source: Bogdanor 2003; Greer and Jarman 2007b; King 2007


Perhaps this does not work to politicians’ satisfaction in practice, or perhaps politicians would prefer something else. Either way, they have been undermining it at least since the first Thatcher governments. This does not mean that it would be more ‘politicised’; ‘politicisation’ rivals ‘presidentialism’ and ‘modernisation’ among the most useless words in the study of British government. It means that specific features of the traditional Whitehall model – unity, generalism, meritocracy, and nonpartisanship – are being progressively discarded. They are being discarded in large part because the United Kingdom’s political leadership is and has been for years frustrated with poor ‘delivery’. Departments are badly run, according to many ministers, and unable or unwilling to fix longstanding problems (Lodge and Rogers 2006). Politicians must work hard to influence the composition of their private offices, let alone departmental directors. At the same time, departments are slow to implement policy innovations. Or departments make and implement policy badly, whether this means IT projects, the creation of a quasi-market in the NHS under Labour, or the various complex processes that ministries responsible for criminal justice, taxation, or immigration must manage. These demands for better and faster implementation of ideas often formulated outside the civil service are common, powerful, and shared across parties, even though there are many commentators who remark on the political class’s unrealistic ideas about public administration. As one highly informed participant in a Chatham House rules seminar remarked, ‘Ministers are far less self-confident’; this group ‘spent their youth factionfighting – it is the most narrowly formed and insecure political class in my lifetime [ . . . ]. Labour MPs once gained their management experience through positions in trades Unions, but that is not the case now’ while the Conservatives ‘spent their time in Central Office’. There is no good, reliable, measure that would tell us whether the extreme positions are right – whether ministers are right about civil service incompetence and unresponsiveness or whether civil servants are right about the flightiness and ignorance of politicians. For what it is worth, the UK civil service tends to look good when compared to other public administrations in Europe rather than to politicians’ desire for an instantly responsive and effective machine. But if people believe something is real, then its consequences are real, and that means the civil service will be under pressure from frustrated politicians. There are well-documented histories of civil service reform efforts since the 1950s (Fry 1995; Hennessy 1989; Burnham and Pyper 2008; Richards 2007). Over time, these reforms and smaller decisions have made significant changes in the civil service. The changes come through two routes. One is by changing the structure of the civil service itself – its generalist-based, career-based makeup. The other is by changing its scope – the range of tasks entrusted to the formal civil service.1

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Changes in structure Changes in structure mean eroding the concept of lifetime careers for generalists in order to produce more competence and responsiveness to new demands. We can date the attack on generalism back to the Fulton Report and its famously acerbic comments on the philosophy of the amateur (Committee on the civil service [Fulton Committee] 1967). The Fulton Committee’s report criticized the civil service for generalism, poor management skills, poor personnel management, and a lack of technical expertise. Since then, civil service reformers have tried to directly address those criticisms in their different ways; a list would be tiresome. But the common theme is better training and human resources management. There have been some breakthroughs: the creation of the Senior civil service, a common body working across all departments, and enhanced interdepartmental mobility and training. The current, and possibly most radical, incarnation of this agenda is Professional Skills for Government, a programme begun in October 2004. It is an attempt to do two things. First, it will emphasize ‘delivery’ and ‘corporate management’ equally with the traditionally more popular ‘policy’. Second, it will formally train all senior civil servants in ‘analysis and use of evidence, financial management, people management, programme and project management’ and the most senior in ‘strategic thinking and communications and marketing’. Paired with (often devastating) departmental ‘Capability Reviews’, the goal is to accept the criticisms of civil service management and remedy the problems. Changing structure also involves undermining the concept of the lifetime career – if nothing else, because lifetime careers stand in the way of hiring in expertise and diversity. The Thatcher governments began, slowly, by trying to increase the number of publicly advertised jobs in the civil service while privatizing some functions and handing others over to a wide variety of agencies. There are, broadly, two mechanisms that bring in outsiders. One is irregular but happens and can matter in the history of a department; it is when more or less independent agencies such as the Strategic Rail Authority or NHS Management Executive, which often tried hard to hire outside the civil service, are folded back into their parent departments (Greer and Jarman 2007a). The other is simply outside hires: using the general, instead of internal, labour market for new hires. That is simple and powerful – and, repeated often, erases the norm that career civil servants take senior civil service posts. The principle of open competition for senior positions came to be something that even the senior civil servants adopted: the 2006–2007 ‘Capability Reviews’ boast of departments that have high percentages of outside hires (Cabinet Office 2006) as do architects of the Welsh Assembly Government (Prosser et al. 2006), and it is part of the Brown government’s reforms. In an unexplained but symptomatic decision, the UK government opted for a target of ‘around half’ outside hires


(House of Commons Public Administration Select Committee 2007b: 26–7). Pressure to hit targets for ethnic, gender, and disability diversity is also a powerful push to open up hiring in some departments (for example, the Diplomatic Service). The intentional efforts to bring in outsiders have been startlingly effective, as have the unintentional ones born of incorporating agencies. It is possible to find a large number of UK spending departments in which fewer than half of the directors or board members come from within the civil service (Greer and Jarman 2007b). There are variations: in May 2007, Department for Communities and Local Government (DCLG) was dominated by officials with decades at the top, while the Department of Health was almost bereft of career officials after years of hiring mostly in the NHS management labour market rather than the career, generalist, civil service. The Home Office (prior to its 2007 split) was mostly run by officials with limited or no time in the career civil service. At the Department for Education and Skills and Cabinet Office, about half the officials had long service in central government – but the other half were mostly from the public sector including local government, agencies, and a smattering of think tanks. In some departments, such as the Home Office, Department of Health, and Department for Communities and Local Government, the boards were even more biased away from long-time civil servants than the senior civil servants of those departments overall. And across the board, very few senior officials were civil service ‘lifers’ without significant work experience outside the civil service. The upshot is that the search for a more responsive, competent civil service, carried out through a small number of organisational changes and a large number of exercises in job and search definition, has removed the generalism, meritocracy, and lifetime careers of Whitehall past. Instead, departments are likely to hire from the operational policy fields in which they work. Hiring teachers for the education department, NHS managers for the health department, and local government officers for the local government department is an obvious way to increase the departments’ technical knowledge and experience. It equally obviously comes at the price of generalism and lifelong career paths within Whitehall. Changes in scope There are two kinds of changes in scope, roughly at opposite ends of government. At the top, the changing scope of the Whitehall civil service means that the near-monopoly of advice once held by the civil service is now much more of a free market – a free market in which the incumbent providers might be at a disadvantage. The two main rivals for ministerial ears are special advisors and outside consulting firms. Special advisors, whose legal status is rather opaque, are essentially a group of individuals with diverse backgrounds brought in to provide loyal advice to the minister. Loyal advice, of course, was what the civil service was supposed to provide.

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Less important, but interesting as actors and as an indicator, are outside consultants. Outside consulting firms have long played some role in government, but their number and importance increased dramatically under the Blair governments (National Audit Office 2006). They are also, above all, skilled in selling themselves. Whether outside consulting firms will be able to retain their lucrative influencing positions is unclear: they are open to insider and outsider attack for the quality of advice and the fees that they charge. The key fact about both changes, though, is that Whitehall is losing its distinct trait that the people immediately surrounding the minister were officials chosen through civil service procedures rather than loyalists chosen by the minister. At the bottom and middle ranks, change in the scope of Whitehall means simple cutting, a technique indelibly associated with Thatcher but practiced off and on by governments since. It generally presumes that civil servants create as much work as they do, and so cutting civil servants will produce the efficiency quickly – and the savings immediately. Starting with efficiency reviews conducted by outside businessmen (Derek Rayner, Roy Griffiths) and others, the goal was to identify waste in Whitehall departments. At their most successful, they led to job cuts. The most recent of these were the Gershon Report (Gershon 2004) and associated reviews. Conducted simultaneously with the development of Professional Skills for Government, they called for ‘releasing resources to the front line’ – about £320 billion. Much of this was to come directly from central Whitehall departments’ staffing. As Michael Barber, a key Blairite figure, agreed with minister Alan Milburn in 2002, part of the problem with delivery in central departments was that ‘there are just too many people’ (Barber 2007: 134). It also means peeling some services off from government departments. Some become agencies of greater or lesser autonomy. The agencies range from Next Steps agencies, which are broadly within the civil service, to highly independent agencies such as the Met Office, Partnerships UK, or Higher Education Funding Council. In other cases, the government has chosen to use the flexible, if highly debated, tool of Private Finance Initiative (PFI) and other forms of competitive contracting for services. PFI and the development of non-departmental public bodies have contributed to a reduction in numbers far down the civil service hierarchy, among the ranks of porters, clerks, and call centre workers.

Devolution and territorial politics Chronologically the most recent, but easily the more conceptually striking threat to Whitehall, is the threat to its territorial unity and comes from the tension between devolution and a unified Home civil service. As the first Constitutional Futures noted, devolution puts the civil service under strain. The basic tension is simple and easy to describe: the Home civil service


emerged to serve a single, unified, UK government. It now serves three governments. Those governments have no necessary incentive to agree upon or make their officials work towards a common goal. They certainly have nothing that would make their officials necessarily collaborate with, understand, or respect each other. That can happen, but collaboration, understanding, and respect can emerge in almost any circumstances. The purpose of a single organisation is to guarantee that it commands that internally. Territorial offices, created as part of distinctive territorial politics and often physically isolated from the London labour market, were always distinctive (Deacon 2002; Mitchell 2003; Rose 1987: 8–9). Devolution, however, is increasing the differentiation. Until 2007, devolution meant Labour-led governments working with Labour-led governments. Now politicians are systematically opting for different kinds of policies (Greer and Jarman 2008). This means that civil servants are adapting to different ways of working in the different political systems, and are operating in different labour markets. The assumptive worlds are noticeably drifting apart. At one emblematic private seminar in Scotland in January 2008, a number of Scottish civil servants were discussing problems in coordinating with a big Whitehall department, and decided to set out what they would say in a memorandum on ways that the UK department could alter its internal procedures to serve them better. It took some time for the non-Scots at the table to realize that when they proposed to address their complaints about Whitehall departments to the ‘Cabinet Secretary’, they meant the Scottish minister. They did not mean the official with the same job title who is head of the Home civil service and therefore responsible for them, their Whitehall colleagues, and the administrative procedures linking them. More important, it is creating pressures on unity that come from the combination of multiple governments with a single Home civil service. The problem is basic: if officials support their minister, and government, where is the scope for them to also support a ‘UK’ civil service when there is a conflict between the governments of the UK? It appears that the officials have settled it: they support their ministers. In two comprehensive studies, Welsh officials uniformly said as far back as 2001–2002 that their duty was to the National Assembly, not to the civil service or the United Kingdom (Cole et al. 2003; Prosser et al. 2006: 227–48). And it is not at all clear what the civil service has that could create countervailing incentives to unity. If officials are teams backing ministers whose aims might be fundamentally incompatible, or who want conflict as a means to other political goals, then it seems unlikely that they will also feel a great sense of unity. The result will be formal and informal ruptures. The informal rupture is well under way – shown in Whitehall departments essentially ‘forgetting’ their devolved colleagues, and increasingly in the devolved officials deferring less to Whitehall. Departments forget to inform each other all the time; the difference is that the consequences of leaving out the Scots can be politically greater than the consequences of leaving out a Whitehall department. The

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formal rupture will not be a result of dynamics within the civil service, even if it is helped along by the policy consequences of the informal rupture. No civil servant is hired to start intergovernmental fights on his or her own. Nor will it be easy to overcome Union resistance to fragmentation of their pensions and labour rights – especially if it threatens what is left of UK-wide pay scales. Instead, it will likely be a consequence of broader drivers that push the parts of the devolved United Kingdom further apart, towards both greater institutional self-definition and greater friction. A senior official in the Scottish Government remarked to me in a January 2008 interview: ‘all of my colleagues expect that there will be a separate Scottish civil service in ten years, but what’s striking is that my colleagues down in London would not understand the question. They just don’t think about it.’ A formal end to the unified UK civil service is already present in the debate; the winning 2007 manifesto for the Scottish National Party (SNP) called for ‘a wholly devolved Scottish civil service on the same model and basis as the Northern Irish civil service’ (SNP 2007: 15). But it is most likely that the formal end of the Home civil service will be almost an afterthought – of any independence negotiations, obviously, but also of any institutional reforms negotiated by governments in Edinburgh, Cardiff, and London who ignore or try to embarrass, rather than cover for, each other. In the first years of devolution, it was often argued that a formally unified civil service was a factor for unity. It is more likely to be one of devolution’s victims. And the striking thing, in light of the importance once attached to unity, is how few people seem to care.

Countervailing drivers What countervailing drivers do exist? In terms of changes from the top down, there is clear political resistance to the role of special advisors, resistance amplified by many different commentators and in the policy debate of two big UK parties. The arguments against special advisors are not always clear, but a Liberal Democrat policy paper puts the thrust well: ‘the proliferation of political advisers has blurred lines of responsibility in Whitehall with consequent confusion [ . . . ] as to who takes or gives advice and who gives instructions’ (Liberal Democrats 2007: 7). David Cameron’s Conservatives have promised to re-emphasize the civil service at the expense of special advisors (Mather 2006), and the ‘Democracy Task Force’ that his party convened under Kenneth Clarke suggested that the number of special advisors should be halved (Conservative Democracy Task Force 2007a). The Public Administration Select Committee’s (PASC) (2004) draft bill also included discussion of the issue. Political party statements are not good guides to policy, but they are evidence of resistance. What they highlight is that resistance was to the role of special advisors, rather than to the range of changes that are remaking the civil service and its role.


Outside consultants are both more and less likely to see their role reduced. On one hand, they are not integral to the structure of government (as the Liberal Democrats point out). This is despite their importance and an entrenched role that comes with remarkably low government confidence in its own skills and analytic abilities. There are ways to build in-house capacity and knowledge at lower costs, and there are many who are sceptical about consultants’ competence, probity, and price (Craig 2006; National Audit Office 2006). On the other hand, there is relatively little debate about the basic usefulness of their role. In terms of changes from the bottom up, there is very little effective resistance. A few giant government departments remain, such as the Department for Work and Pensions, and some agencies’ employees keep civil service status. There is an ongoing undercurrent of talk about privatizing some of those departments’ functions. Popular theories of management, political interests in blame-shifting, private sector lobbying, and the Treasury’s interest in possible revenues from sales (or insulation from future obligations) all suggest that their transfer to more autonomous agencies or privatization is possible. Union resistance has not been able to stop the broad trend either. It is worth noting that all of these countervailing drivers point to slowing or stopping, not reversing, the changes. Special advisors, consultants, and outsourcing appear to be here to stay. Only the most direct manifestations of political responsiveness – the activities of special advisors – have come under attack. We can take this as an indicator of general satisfaction among political elites with the direction of change. Or at least as a sign that they see no better way to get the civil service to ‘deliver’ and reflect their various goals.

Scenarios The broad trend then is from a high degree of unity to a large degree of decentralization and from a balance of political and legal constitutionalism to a frankly political constitution in which the responsibility of the civil service is to carry out political instructions rather than influence politicians’ decisions. The old characteristics of Whitehall were its unity, across departments and territories, and its combination of political responsiveness with quiet checks on governmental hyperactivity. The Government has introduced legislation that would slow one driver, namely the tendency to increased political responsiveness of the civil service. It would slightly change the scope of the civil service at the top, would not change the scope of the civil service at the bottom, and need not change or affect changes to its structure. This means that the direction of travel is basically well-established. The differences between scenarios will be in the implementation and in the (important) issues that have been left out.

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The law: Codifying the Present It would have been entirely possible for the United Kingdom to continue on its trajectory, with a slow increase in the managerial nature, political responsiveness, and territorial fragmentation of the Home civil service. Instead, the calls for a codification of the status of the civil service finally fed into the general effort by Prime Minister Brown to codify the autonomy and independence of a variety of government agencies. Just as strong prime ministers tend to alternate with ones who take Cabinet seriously, strong prime ministers such as Blair alternate with ones such as Brown who announce respect for civil service professionalism and advice. The difference is that Brown, unlike every other Prime Minister since the Northcote-Trevelyan report, proposed legislation to address the nature and role of the civil service. There was no question about the existence of political agreement about the desirability of some solution. The Conservatives and Liberal Democrats, as noted, have both called for regulation that regulates relationships between officials, politicians, and special advisors at the top. Comparable countries such as Canada and Australia have them (King 2003). The PASC was, in January 2004, exercised enough to propose a draft civil service Bill of its own (see Public Administration Select Committee 2007c: 38–43). Outside, a chorus of more or less coherent commentators had called for some such law. The form the law took is unsurprising – the creation of independent statutory regulators and transparent guidelines for assuring desirable goals. It would be surprising if a bill in the Governance of Britain package did not adopt the basic formula of trying to restore faith in democracy by promoting independent regulators and transparency.

What it does The Governance of Britain green paper announced that there would be ‘concise and focused’ legislation to ‘enshrine the core values and principles of the civil service in law’ on the grounds that the civil service should not be ‘left vulnerable to change at the whim of the government of the day’ (Ministry of Justice 2007c: paras 43–4). But its specific comments were focused on one issue: the role of special advisors. It promised to clarify their position and make it clear that they had the power to advise, not authority. The review of responses to the consultation on the Governance of Britain paper (which included responses to the consultation on the Government’s response to PASC’s draft bill), and the draft bill, predictably included more than the role of special advisors. The values and principles were the ones long attributed to the civil service – integrity, honesty, objectivity, and impartiality. The Minister for the civil service will have to publish a code that will ensure those. Special advisors, meanwhile, will get their own code, written and laid before Parliament by the same minister.


The civil service Commissioners, meanwhile, get a statutory basis. They will be appointed by the Minister for the civil service and publish guidelines for outside recruitment. This should restore their historic function as the principal guardians of merit-based recruitment and promotion (Chapman 2004). They will also have authority to hear complaints from civil servants who have exhausted all internal mechanisms. This all marks a small bend to the south-east – to a more legal constitution, with the civil service written in. It is a small bend because of what the bill does not do. What it does not do What does this leave unresolved? First of all, much of the detail. The declared purpose of the legislation was to ‘enshrine core values and principles’, not create a rigid, permanent framework for the civil service or even change the status quo c. 2008. The draft bill would empower the Minister for the civil service to publish a civil service Code and Management Code, and what it specifies is relatively limited. The civil service Commissioners’ role in setting guidelines is spelled out, but none of its content. So they will determine the detail and be able to revise it over time – publicly but with limited oversight. Second, it addresses the civil service in a relatively narrow, ‘constitutional’ sense. It does not do much to settle major questions about, for example, the nature and scope of ministerial responsibility. Some of the issues that it does not directly address include • The nature and control of agencies. In the hierarchy of non-departmental public bodies, there are many gradations and it would be possible to specify the legal status of their employees (such as the conditions under which they can be fired); • Whether there is to be a new system of accountability, such as greater demands for high-level officials to be named, called to account, and perhaps fired as a result of non-performance. This would have to specify who is responsible for making such determinations; • How accountability interlocks with hiring: ministerial accountability would make more sense if ministers were to chose more of their top officials; • The definition of political and non-political work (most pressing in media and communications issues). In other words, it does not address the issues of accountability and delivery that have created most of the frustration with and made up most of the changes in the civil service since Fulton. In this respect the 20 November 2007 resignation of Paul Gray, chair of Her Majesty’s Revenue and Customs (HMRC), might prove to be more significant. Gray resigned because of a major data loss caused by a minor official who violated procedures. This is an unprecedented case of a high-level official, rather than a minister, taking

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the blame for administrative incompetence. If that precedent holds, then it might be the future basis for a stable bargain between politicians and their top administrators that better allocates power and blame. But that is because, third, the bill does not change the drivers. It is, as often happens, a minimalist response focused mostly on the problems publicly associated with the Blair governments – overmighty special advisors and the whole image of ‘sofa government’. That might be welcome, but it is, effectively a ‘mini’ scenario for change. The bill will have a relatively limited effect on pressure from politics because it does relatively little to stabilize the structural position of the civil service in the large political and administrative system. The main driver of fragmentation is politicians’ frustration with the civil service, principally on the grounds that it does not ‘deliver’ well. Politicians of all parties and ministers of many different kinds have endorsed the view that the civil service is incompetent, as has much of the civil service. The responses, detailed above, are about improving training, reducing the size and scope of the civil service, and creating personal accountability for failure, mostly through agencies. Formalizing outside hiring and establishing a shared procedure for doing it would create some overall standards, but otherwise it is not clear what the bill would change. The biggest change will be establishing that only civil servants can give orders in departments. This should slow their erosion of ‘market share’ for ideas at the top; even if they are not asked to have a single new policy idea, the need to route policy through them should give them a stable ability to influence politicians. It will also have a limited effect on the issue of territorial fragmentation. There is scope for the Minister for the civil service to publish separate codes for Scotland and Wales (and civil servants would be instructed to support their government, devolved or UK). That might be a pragmatic adjustment or a face-saving way to establish de facto separate civil services for the devolved administrations. The possibility of separate codes would go some way towards creating a framework in which the Scottish and Welsh civil services could be different. The shared civil service Commission militates against that, however, as does the difficulty of combining the Home civil service, under any dispensation, with a Welsh Public Service corps of some sort, or a formally separate Scottish civil service. Given that the drivers towards fragmentation are a function of devolution, not civil service regulation, this bill is basically irrelevant. The flexible framework could allow the Minister or Commissioners to resolve some of the more complicated issues in the codes, and would oblige them to make their decisions clear (although the codes must be laid before Parliament, not passed by it). The bill will create procedures for coping with some of the changes that will come as the civil service continues on its trajectory. Future civil service Codes, civil service Management Codes, and recruitment policies will be where we look for the adaptations to the desire


for a responsive, managerially oriented civil service that fits with devolution. It might give us good indicators of the south-westerly progress of the civil service. Political Adaptation The new legislation is, to a large extent, a framework for making clearer the direction of travel. It should not change the general direction of travel to the south-west. All of the variation is in speed – namely, the speed of the changes in scope and structure driven by pressure from politicians to deliver, and the speed of changes driven by devolution and the tensions it causes between officials. In other words, the civil service might be enshrined in law just as its traditional administrative form completes its transformation into something that would surprise most of its historic admirers. The development of devolution would dictate the speed and extent of southern motion towards more dispersed power. Scottish or Welsh independence would obviously mean totally dispersed power. But it is possible to imagine scenarios in which Scottish and Welsh leaders of any given party would decide to live with the de facto fragmentation of the Home civil service, and not call for its de jure breakup. This could be as minimal as the separate codes foreseen in the draft bill, or as maximal as a transfer of many officials from the Home civil service into some parallel devolved body. Pressure from politics will continue to push the civil service to the west, towards a more political constitution in which its job is to deliver political ideas rather than exercise any sort of a role as a constitutional watchdog. The drive to encourage delivery, through hiring specialists and managers rather than generalists for life, will continue to shift the scope and structure of the civil service from the autonomous, generalist body that was expected to guard the constitution as well as its ministers. The trajectory westward is likely to be repeatedly shifted, however, by efforts to regulate in order to maintain a state apparatus that is nonpartisan. We have had a small example with the debates about special advisors that culminated in Brown’s bill. They have absorbed most of the criticism, despite the fact that many other people are engaged in reducing the scope and changing the structure of the civil service. The bill will regulate them – and will also mean that civil servants will be significant players in policy-making and communications (where the problems with special advisors most often erupted under Blair). If politicians, who will still have special advisors, therefore seek to make the entrenched civil servants more clearly political, then they might want to consider adopting the Australian solution in which some civil servants are detailed to clearly political duties (see Figure 8.3). In the future, outside consultants, agency heads, or civil servants with clear political loyalties might emerge as problems that attract sustained political attention. We can expect regulation to cope with those individual

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Insofar as the problem is one of ministers who do not like or value their private offices, Australia shows one solution that is compatible with the style of Westminster democracy. This is the ‘ministerial advisor’ (King 2003). These are temporary officials around the minister, many of them civil servants for life, who bring technical expertise and clear partisan affiliations into the service and supporting ministers. The Australian system seems capable of maintaining a balance – including surviving the presence of officials who have served in a top-level, partisan, capacity. In fact, the advisors have become more technical, even as their partisanship has become accepted (Maley 2002). The payoff might be comparatively small, but it would demarcate political and official roles and authority at the top quite clearly and possibly reap advantages from incorporating expert special advisors into the ministerial private office (the ministerial advisors serve alongside special advisors akin to the British ones).

Figure 8.3

Ministers and civil servants: A solution from Australia

problems. In each case it will slow the trajectory towards a more politically responsive, managerial civil service. The new watchdogs of the civil service Commissioners should also slow the trajectory, as will political responses to the various codes. But the overall political consensus opposed to a generalist, autonomous, lifelong civil service seems durable. That generalist civil service’s expectations, career paths, and self-confidence, and not just its legal framework, was what made it into a constitutional check and balance. It will instead be supplanted by new constitutional watchdogs and asked to deliver more and better.

Not going to happen The logical alternatives are trips northward – to an increasingly unified and legally bound civil service. They will not happen. The main drivers – territorial fragmentation and the push for political responsiveness – are powerful. The countervailing drivers – Unions’ push for unified pay, pensions, and conditions, and elite discontent with ‘politicization’ are not powerful enough. And returning to the status quo of 1965 would also swim against the tide of a British politics that is steadily less deferential, tolerant of secrecy, and inclined to trust its elites.

Conclusion One of the most striking things in writing about the civil service is the extent of the agreement among political elites. It has two components. First, there is a focus on civil service delivery that means Labour and Conservative governments alike have pushed for better delivery, more access for political advisors at the top, and less generalist, autonomous amateurism from the officials.


Top officials, untrained in delivery and in charge of organizations that have always delegated delivery to local units, have rather mysteriously come to agree with the idea that what they do is delivery (Page 2007). The second striking thing about civil service debates is the depth of the nostalgia. Despite decades of criticisms of the civil service as incompetent, and the many and diverse politicians who whittled away at its coherence and dominance, it is very difficult to write about it without being assumed to be defending Sir Humphrey. Odd arguments are made in all seriousness. A remarkable number of commentators who apparently confuse government with a book club take the declining literary quality of government papers as evidence that civil service reforms should be reversed and Sir Humphrey reinstated. But that reinstatement looks highly unlikely. Good books have argued that the post-war role of the civil service was a fluke – a particular, temporary, British way to combine oligarchy with democracy by delegating the powers of elected governments to unelected groups of elites (Moran 2003). Others point out that high-level bureaucrats everywhere have lost their mystique (Page and Wright 2007). By this line of reasoning, the relationship of Whitehall and politicians that once existed is doomed as democracy – flawed, televised, democracy – encroaches. It manifests itself in devolution and the pressure for delivery, both of them powerful pressures pushing the civil service towards greater territorial fragmentation and political responsiveness. There is a wonderful irony if this institution, for so long a part of the constitution as a check on political excess, should now become more politically responsive, just as so many other institutions are liberated and made constitutional watchdogs. But that seems to be the case. It gets its own regulators restored, but continues to lose its own role as a constitutional watchdog in itself. The history of Whitehall from Northcote-Trevelyan to Thatcher was one of unification, generalism, and autonomy. The history of Whitehall for the next ten years, barring heroic political activity, will be that of fragmentation, responsiveness, and redefined accountability.

Notes 1. I owe this distinction to Adrian Blau.

9 The Future of the Monarchy: The Reign of King Charles III R.M. Morris

This chapter considers the likely range of changes to the monarchy following the present heir’s succession. It differs from other chapters in addressing a less certain time frame. Essentially, change may be triggered only by an unsought and impossible-to-predict event – the death of the sovereign, or by unheralded abdication. What follows surveys the drivers of and constraints on change in the sovereign’s role, considers what may be possible turning points, and identifies what aspects of the role should change, what are most likely to change and how.

Working assumptions At the outset, it will be helpful to make some assumptions clear: • the present Prince of Wales will succeed. Whilst it may be diverting to speculate about whether the succession might slip to his elder son as William V (see Blackburn 2006: 182–7), the law is clear: Charles will be the next sovereign. As one hostile observer perhaps rather gracelessly put it: ‘[m]y children and yours are stuck with Charles III, whether we like it or not’ (Hamilton 1975: 191). • An heir’s personal attributes are irrelevant to succession: it is enough simply to be. • There are only three circumstances in which the British monarchy will come to an end: state failure (following, for example, revolution, invasion/defeat or financial collapse), a strong government’s decision to abolish it, or resignation (the hereditary family gives up). None of these seems likely: the first should be avoided; granted how monarchy benefits ministers, the second is unlikely; though the third should not be ruled out as the price of constant intrusion rises and/or for other reasons the role ceases to be humanly tolerable. • Britain is already a republic for all practical purposes. In this respect it differs from France: that country is a monarchy that looks like a republic 139


whereas Britain is a republic that looks like a monarchy. It follows that, in making a case for a republic, the argument must be about intensification of form rather than the creation of novel substance.

The present position As everyone knows, Britain is a constitutional monarchy. The absence of a written constitution is the result of a relative absence of discontinuity: most written constitutions are the result of state failure. The relative opacity of this constitution leaves much room for speculation particularly in the case of the sovereign’s current powers. One expert – developing Bagehot – defines the sovereign as having five rights: ‘to be informed, to be consulted, to advise, to encourage, to warn’ (Brazier 2003: 78). Much is sometimes made of the manner in which the present sovereign has made constructive use of the last three with her Prime Ministers (Brazier 2003: 80). However, because the regular audiences are neither recorded nor published, there is no way of judging the quality of the exchanges. Insofar as quality turns on the accumulated experience of the present sovereign, the heir will not initially at least possess the same wisdom. The prerogatives Less opaque is the question of the Royal prerogatives. These fall into two groups: the common law prerogatives requiring no Parliamentary procedure and nowadays at the disposal of the Prime Minister and his colleagues (for example, the powers to conclude treaties, wage war, conduct foreign relations, issue passports); and the so-called personal/direct prerogatives or reserve powers of the sovereign (for example, the appointment of the Prime Minister, agreement to dissolve Parliament – dissolution – prior to a general election, and assent to legislation). In his first initiative as Prime Minister, Gordon Brown published in July 2007 a green paper (Ministry of Justice 2007c), which committed the government to submitting the exercise of a number of the prerogatives, including the power of dissolution, to Parliamentary scrutiny or decision. However, the later white paper (Ministry of Justice 2008a) implies that the continuing review will not extend to the reserve powers. Dissolution was the only one of the reserve prerogatives marked for change in the green paper. Making a Prime Minister enjoying a majority seek Parliamentary endorsement may not do much to change outcomes. However, a Parliamentary vote will conclusively trump any lingering talk about a supposed royal discretion to refuse. About the other prerogatives there is dispute: the majority of constitutional commentators have taken the view that their exercise, especially in the case of appointing Prime Ministers and even possibly refusing assent to legislation, may be contemplated other than on the advice of ministers. Much delicious speculation has ensued about the

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precise circumstances in which unadvised decisions could legitimately occur (Bogdanor 1995: 84–182; Brazier 1982). However, these views have been criticised (for example, Blackburn 2006: 82–6), and the issues will need to be among those addressed by the heir especially, say, should electoral reform make hung parliaments more likely. Other royal functions On the one hand, there are the statutory or customary political functions, for example, opening Parliamentary sessions announcing government’s legislative intentions, and the headships of the Church of England and of the Commonwealth. On the other hand are discretionary roles relating to the way in which sovereigns choose to behave as head of state outside the strictly constitutional or political areas. As has been pointed out, since George III the monarchy has progressively adopted a ‘welfare’ style which has sought to identify itself with ‘good’ causes, thus making the monarchy the head and focus of civil society through its welfare work. Beyond that, royal philanthropy serves well the monarchy’s wider intention of providing the unifying symbol of the nation. (Prochaska 1995: 281–2) Typically, much of this activity involves responding to invitations of great variety and is evidently capable of giving great pleasure, which the award of honours twice a year does in more directly personal form. In addition, no one should underestimate the ability of the royal family – for good or ill – to attract and concentrate media attention on subjects which might otherwise struggle to obtain any attention at all. On the other hand, at least one observer thinks that the representative ‘family’ role may have died in the 1990s (Starkey 2007). The Prince of Wales has continued in all these veins. His time in the Royal Navy has given him direct experience in one defence service and an affinity for the others. He has undertaken many official visits abroad, and a youthful experience at the Geelong school in Australia is but one factor that has given him knowledge of a wide range of Commonwealth and other countries. Increasingly, he has been seen as in practice deputising for the Queen at some of the more prominent public occasions at home and abroad – where all official trips are the result of government requests. On the welfare front, he has been very active not only in accepting the patronage of a wide range of charitable bodies but notably proactive also in setting up new charities of his own under the umbrella of the Prince’s Charities Foundation concentrating on disadvantaged youth. This has sponsored a great range of activities which have included the encouragement of disadvantaged minorities and grants to help business projects, including by ex-offenders, get up and running. He has exploited – more fully perhaps


than realised – the crown’s ability to attract considerable sums for charitable purposes. So far, so traditional: except for showing an interest in some unfashionable, slightly left field topics (for example, ‘complementary’ medicine, organic farming) and expressing personal tastes hostile to ‘modern’ architecture, the Prince has settled in his Cotswold house and cultivated a wider range of interests than may be regarded as typical of his portion of the upper middle class. His youth was too early for the urban clubbing enjoyed by his sons, and he has now (at age 60) reached a point where he has more to look back upon than, with the obvious exception (see Figure 9.1), to look forward to.

The Queen has made it clear that she sees her obligation is to serve for the whole course of her life. Acknowledging that lesser thrones may have gone in for serial abdication to make way for younger replacements, talk of abdication has been discouraged. In any case it is typically the sort of action that is not discussed until it is resolved upon. This does not, however, end the matter. The Queen is now 82 and the heir 60. There seems every likelihood that the Queen enjoys the good health of her mother and may therefore be expected to live an equally long life. However, even in the most favourable circumstances, her energies are bound to diminish, and she will no doubt taper her activities and expect the heir to take on more of her role if not, of course, all her functions. At present her functions may be formally delegated in only two ways: one for temporary purposes and one more permanently. Under the Regency Acts of 1937 and 1953, Counsellors of State may be appointed for temporary purposes, for example, should the Queen be incapacitated by a passing illness or be out of the country. The Counsellors of State consist of the heir and the next four in line of succession. The Counsellors have to act jointly, and cannot without the sovereign’s express permission consent to a dissolution or grant any rank, title or dignity of peerage. Should a demise occur or a regency be necessary, the delegation to Counsellors automatically ceases. A regency may occur if any three of the sovereign’s spouse, the Lord Chancellor, the Commons Speaker, the Lord Chief Justice of England and the Master of the Rolls declare on medical evidence that the sovereign is by reason of infirmity of mind or body incapable for the time being of performing the royal functions or is for some definite cause not available to perform them. The regent acquires all the powers of the sovereign except that he may not assent to any Bill changing the succession or for repealing the Queen Anne legislation securing the position of the Church of Scotland. There are therefore limits to what an heir may undertake without a regency, but a regency may occur only as a result of the sovereign’s incapacity. It follows that ordinarily, although the heir may take on a wide range of ceremonial functions, he could not, for example, appoint prime ministers or bishops, give assent to legislation, confer honours or grant dissolutions. On the other hand, there is a lot he could still do from reading the Queen’s speech at every new parliamentary session, leading attendance on Remembrance Day, fronting diplomatic including Commonwealth

Figure 9.1 Another abdication?

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occasions to presiding over the presentation of honours. Attending the Prime Minister’s audiences with the sovereign would also be sensible. For so long as the sovereign could signify assent to Bills, regency would not be necessary. But such a limbo life could also continue for a very long time, especially in the case of a sovereign’s prolonged ill-health short of incapacity. Temporary expedients could become strained and the heir be trapped in an endless weak lieutenancy – always the bridesmaid and never the bride. Whilst there would be great sympathy for an ageing sovereign and instinctive indulgence in recognition of a life of impeccable service, there would also be a growing sympathy for the anomalous position of the heir, confused simultaneously perhaps with growing attention to the next in line – a source of potential conflict. Could there be a case for a new kind of regency (for example, Brazier 1999: 204) which gave full powers to the regent but took none away from the sovereign? In 2020 the Queen is 94 and the heir 72. You are the Prime Minister. What would you do?

Figure 9.1

(Continued)

Drivers of change Societal changes The social class and ethnic composition of the United Kingdom is vastly different from 1952 when Elizabeth II succeeded. The economy is transformed from reliance on a high level of industrial activity characterised by ‘heavy’ manufacturing, ship-building and coal mining; a service economy and reformed manufacturing sector, both dependent on higher levels of education, have arisen in its place. The heavily militarised economy of the early 1950s fighting a war in Korea, undertaking widely dispersed policing actions with conscripted troops throughout a colonial empire and in permanent confrontation in NATO with the Warsaw Pact has given way to more limited commitments by wholly professional forces. The armed services have become part of an international UN/NATO gendarmerie rather than a merely British imperial gendarmerie. Britain is a less deferential place and more a self-confident and articulate meritocracy. It is also significantly more diverse and heterogeneous. Although spread very unevenly, the ethnic minority population constitutes 8 per cent of the total and is itself composed of very different elements. Moreover, the extent of post–Second World War immigration has introduced a degree of religious diversity hitherto unknown. There is no longer any taboo about discussing the monarch that Lord Altrincham (1958) was accused of breaking in 1957. Support for the monarchy remains high in the polls. It was so high in 1983 that the British Social Attitudes Survey decided not to repeat the same questions for a later report (Jowell et al. 1988: 110–111). Support has remained high – 73 per cent of MORI respondents in 2003, although a smaller proportion thought that the


monarchy would last another 100 years (MORI 2003). On the other hand, the British Social Attitudes Survey in 1997 found that there had been a decline in belief in the importance of the monarchy from 63 per cent who had thought it ‘very important’ in 1983 to 32 per cent in 1996. There were also differences between generations: in 1996 belief in importance was higher in the oldest (43 per cent) and lowest in the youngest (23 per cent); in addition, there had been a small increase from 8 to 14 per cent in those in favour of abolishing the monarchy (Jowell et al. 1997: 15). No one can, however, doubt the crown’s enduring popular emotional appeal: the one continuing UK-wide – British even – institution above party politics and, if flawed, manifestly human. Gender Elizabeth II has benefited from her gender: it was thought unmanly to criticise the young Queen. Her sex has continued to restrain comment even throughout a period where feminine roles have become more diverse and women more assertive. Her heir cannot rely on enjoying the same restraint: media and public scrutiny could well become less tolerant and forgiving. Lifestyle choices that the heir might regard as normal within his class (for example, elite sports, numerous personal servants, expensive socialising) could become pilloried as being out of touch and insensitive to the needs of others, especially in adverse economic circumstances. Attitudes to Prince Charles’s relationship with Camilla Parker Bowles perhaps reflect this. Whereas polls showed substantial majorities in favour of their marriage when it took place, majorities (Ipsos Mori survey quoted in Macadam 2006) still baulk at his wife’s becoming styled queen on his accession. Celebritisation This cuts both ways: greater media exposure has made the monarchy less remote and more apparently accessible; but the same exposure has become relentlessly and unforgivingly intrusive. Gone are the conventions operating in Elizabeth II’s early years – carefully posed photographs and deferential newsreels, including the first televised coronation. A greatly proliferated and competitive media now seizes every opportunity to dwell on the royal soap opera (see Chapter 13), sometimes – as in the case of Princess Diana, or the sly ‘normalisation’ of Camilla Parker Bowles – with the conniving help of the subjects and their advisers. Negotiating these shark-infested waters requires nerves of steel. As monarch, the option of withdrawing from public life and the celebrity culture is not available, and nor may the terms of engagement be settled unilaterally. As has been pointed out, a convergence is occurring between ascribed (bloodline) and achieved (life works) celebrity (Rojek 2002). The nature therefore of the public attitudes towards sovereigns will be increasingly influenced

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by how they present themselves and the causes with which they identify, but in a situation where they have more than ever to compete for attention: [ . . . ] the fact that it had been Diana who changed to meet the requirements of fashion, rather than the other way around, hinted at the changing power dynamics of monarchy and the worlds of style and celebrity (Cartner-Morley 2002: 15).

Politics The drivers here are diverse and highly interactive as well as influenced by particular events and their timing impossible to foresee. However, it is from the following clusters that challenges seem most likely to arise. Internationally, Britain’s more developed European identity diminishes the former imperial character of the British monarchy and in ways not redressed by the Commonwealth. Indeed, it is by no means axiomatic that Elizabeth II’s heir will become head of the Commonwealth. There is no agreement written or otherwise that says so, even though it is accepted that the Queen herself has personally made great efforts to support the institution and its development – sometimes, it is said, with the less-than-enthusiastic support of her ministers. Amongst the Commonwealth states which are realms (that is, where the Queen is head of state), there is likely to be a further drift towards republicanism. Australia flirted with republicanism in the lost referendum of 1999 and may do so again (Munro 2000). Whilst a further move to republicanism does not mean that the headship should no longer rest with the British crown, it would reinforce questioning Britain’s dominance. Even by the 1980s one observer thought that it was ‘hard to imagine the Commonwealth continuing in its present form without the particular Monarch who had presided over it since its emergence in its modern form’ (Pimlott 1996: 463). Domestically, the interaction between the monarchy and the new Parliaments in Edinburgh and Cardiff is untested beyond the statutory formalities. In Wales there is no strong independence movement though the current government is a Labour/Plaid Cymru coalition. In Scotland there is a minority SNP government albeit one whose leader has rushed to assert that independence within the EU does not mean ditching the monarchy. On the other hand, the increased asymmetry that devolution has brought does not yet appear actually to threaten the Union as a whole (Curtice 2006a). Neither assembly has sought to take any particular attitude towards the monarchy, although the Scottish parliament has passed a resolution deploring the remaining prohibitions directed at Roman Catholics under the Act of Settlement 1701 and requesting that they be repealed (Scottish Parliament 1999).


Whilst there is no requirement to do so, it would be odd if the new parliaments were not engaged by the UK government in the reception of the new sovereign. They could be expected to have views about both how Charles III should be welcomed in their own communities, and their own place in UK national ceremonies. Whether they would use the opportunity to assert difference in some way would depend on the character of the contemporary leadership and the extent to which it saw accession as an opportunity to do so. That would in turn depend on how far national identities hostile or aggressively indifferent to monarchy develop. Whilst there are no evident signs of this at present, there are sensibilities now given institutional form in the shape of the devolved bodies which will require careful attention by a new monarch. They will also require careful attention by the UK government, although that government is the most likely to adopt a conservative approach. Whilst the government’s proposals will tend to formalise the prerogative powers which have formerly been of considerable advantage to the executive, that branch of government will be wary of more than cosmetic, procedural changes to the monarchy’s roles. Even though resort to statutory, ‘Scottish’, solutions might be attractive, significant change will require legislation the executive could not invariably be confident of controlling in the absence of the solidest cross-party agreement. What could prove very challenging is the prospect of ‘hung’ parliaments where no party has an overall majority, and when – in the absence of a ‘Scottish’ mechanism – new conventions might have to be quickly manufactured to protect the monarchy from the consequences of making injudicious choices. These considerations tend to make the executive of whatever political stripe a very conservative force in dealing with the monarchy. On the other hand, the more the prerogative powers are codified, the less the executive needs to shelter behind or, therefore, support the monarchical status quo. Whilst this does not mean that there will come a tipping point following codification which will inevitably predispose the executive in favour of moving to more explicit republicanism, there will be less inbuilt desire to appease the monarch of the day. Religion In 1952 Britain could be confidently described as a Christian and Protestant nation – it is thought that about 25 per cent of people in England attended overwhelmingly Protestant churches regularly. The situation now is greatly different. Regular overall church attendance is under 7 per cent and apparently continuing to decline. Partly because of recent immigration, the Roman Catholic Church probably attracts more worshippers than the Church of England. Above all, the religious character of the nation is no longer entirely Christian. According to the 2001 Census, more than 5 per cent of the population profess non-Christian faiths. Taking only the major

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groups, 3 per cent or 1.6 million are Muslims, 1 per cent or 559,000 Hindus, 0.6 per cent or 336,000 Sikhs and 0.6 per cent or 267,000 are Jews. Equally significant is the growth of unbelief. In what is generally regarded as an under-enumeration, the 2001 Census found 25 per cent of respondents either stated that they had no religion or did not state one at all. Other survey data estimate unbelief to be about 40 per cent: the British Social Attitudes Survey shows unbelief growing from just over 30 per cent in 1983 to 40 per cent in 2005. Adding those who never attend their places of religion, non-observance amounts to two-thirds of the population. Not surprisingly, a similar proportion (65 per cent) questioned in 1991 did not think a want of belief unfitted politicians for office. These data have clear implications for the current form of monarchy in the United Kingdom and its close links with the established churches in England and in Scotland. At present, monarchs have to be in communion with the Church of England of which they are Supreme Governor, and swear to uphold each form of religion in their separate countries. Not only may monarchs not belong to any religion not in communion with the Church of England but also they may not marry a Roman Catholic (see Figure 9.2). These arrangements, codified respectively in 1701 and 1707, reflect the geopolitical realities of the late 17th century. As Supreme Governor, the monarch appoints all the senior Church of England clergy though without a similar relationship with the Church of Scotland where a strict form of church/state separation obtains. Whilst the planned removal of the Prime Minister’s active involvement in advising the sovereign on Church of England appointments will not effect disestablishment in England, it will tend to call into question the ultimate survival of the Supreme Governor role as now understood. Most unlikely of all is that the monarchy could lead a proposed resacralisation of secular Britain (Bradley 2002a: xix).

At a time when a young King has succeeded and is married but still childless, his brother indicates he wishes to marry a Roman Catholic partner. The young woman is of impeccable character and winning manner, her father a soldier hero of the Afghan imbroglio. The King is willing to give the necessary consent under the Royal Marriages Act 1772 but is concerned that the marriage would remove his brother from the line of succession. Moreover, it seems likely that the younger brother will himself convert to Roman Catholicism. The King speaks to the Prime Minister: can’t the government fix this? The Prime Minister says he will look into it. He discovers that removing the prohibition is not entirely straightforward. He is advised that praying in aid the Human Rights Act – as for the marriage to Camilla Parker Bowles to circumvent a supposed statutory restriction – would stretch things too far. Whilst an amendment to the Act

Figure 9.2

Second-in-line and a Catholic fiancée


of Settlement 1701 could remove the prohibition on marriage, it would open the possibility that, should the younger succeed the elder brother, the Supreme Governor of the Church of England would be a Roman Catholic – an anomalous position all the more repugnant to the Archbishop of Canterbury following the Pope’s recent further dismissal of the validity of non-Catholic churches. Yet legislating to remove the monarch’s relationship with the Church of England would be no more palatable. The Prime Minister is at first inclined to settle for a fudge whereby the younger brother, notwithstanding conversion and marriage, stays in the line of legitimate succession and the remoter issues are postponed to the day when, if ever, they arise. He thinks consultation within the Commonwealth under the Statute of Westminster 1931 would not be troublesome. On the other hand, the Prime Minister knows that it would all be a fudge and, moreover, is not entirely sure that he could carry the necessary legislation intact, amongst other reasons because it could hardly stop at removing only one of the Roman Catholic disabilities. Whilst no Parliament may bind a successor, the 1701 Act seemed to have had a very successful try in practice. As he famously said on another occasion: ‘One cannot half open a can of worms.’ There are some discreditable anti-Catholic rumblings in the Commonwealth, and the Prime Minister begins to think that continuing the exclusion has merits after all. Just then a noisy claque of the younger brother’s ‘friends’ put it about that a weak-kneed government is hell bent on denying him his human rights. Talk of judicial challenge grows. Supported by the Scottish Parliament and Welsh Assembly the English and Scottish Cardinals come out strongly for the change, and – for the first time – the Pope weighs in too. You are the Prime Minister. What would you do?


The facts of religious diversity and significant unbelief impact most obviously on the hitherto sacramental character of the monarchy. Few if any are likely now to believe in the monarchy’s providential nature, that the monarch is appointed by God. In practice this has probably already been silently and unconsciously internalised and discounted in people’s thinking – surfacing, for example, in the YouGov poll 2005 finding that about half of respondents thought Charles as King should not be the formal head of the Church of England.1 On the other hand, it is true that the Church of England retains support over and above its own membership, including from non-Christian religions. However, that support is less for the Church’s own sake than for the official recognition of religion generally which establishment is thought to represent. Although it is possible that Roman Catholic agitation against the constitutional discrimination could become more insistent and attract more support, by itself that source of pressure is unlikely to be conclusive. Whilst none of all this fatally subtracts from the rationale of monarchy, it does the more conclusively give it a less unchallengeable and more conditional character. It may be enough in law simply to exist to become sovereign, but staying sovereign is implied nowadays to require the effort of good behaviour responsive to changed social and political circumstances.

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Money To summarise, the sovereign has four significant sources of finance: parliamentary grant in the form of the Civil List, Grants in Aid (borne on the votes of government departments for the upkeep of palaces, for example), Privy Purse (income from the Duchy of Lancaster), and wholly private monies. The Crown Jewels and the Royal Collections belong to the sovereign but are in practice, like the Duchies’ revenues in law, inalienable. The Civil List’s purpose is to defray the cost of the monarchy’s public duties. It dates from 1760 when George III surrendered the income of the Crown Estates in return for an annual Parliamentary Grant. The List is reviewed every ten years and was last reviewed in 2000 (HC Deb 1999–2000). Existing Civil List provision expires after six months into each new reign. In that period a Select Committee of the House of Commons with a government majority considers the requirement, and a new Civil List Act gives effect to its recommendations. Whilst historically there has been only one such Act in each reign, in the present reign there have been Civil List Acts in 1952, 1972 and 1975, the latter two because inflation had made the 1952 settlement unsustainable. Traditionally, the Select Committee deliberations take place in private, although the evidence taken by the 1971 Committee was published at the same time as its report. Royal finances have been controversial, in 1971 to the point of the then Opposition pressing for a Royal Household Department to be run by civil servants and answerable to Parliament. The financial problem has been to identify a mechanism which guarantees adequate funding without encouraging profligacy and yet gives some reasonable year-on-year flexibility. The political problem has been to explain convincingly the large sums involved and align the sovereign’s financial privileges with changing public expectations. In the former case, this led to the accumulation of surpluses. In the latter case, there was growing unhappiness about the fact that neither the sovereign nor the heir paid income tax. So far, these rubbing points have been resolved in two ways: by recent decisions to arrange for some additional expenditure to be borne on the Civil List, and to draw down the surpluses rather than increase the annual grant; and, second, by the Queen and the heir agreeing voluntarily – after some external pressure in practice (Hall 1992) – in 1993 to pay income tax and capital gains tax. It remains the case, however, that sovereign-to-sovereign bequests are not liable to inheritance tax. Further, neither Duchy pays capital gains or corporation tax. This position is explained on the royal website on the grounds that ‘constitutional impartiality requires an appropriate degree of financial independence for the Sovereign. The Sovereign is also unable to generate significant new wealth through earnings or business activities’ (see Royal Insight n.d). In addition, the audit of the Civil List is undertaken by the Treasury answerable


to a minister rather than by the Comptroller and Auditor General (C&AG) answerable to Parliament. In recent years, a great deal has been done to put details of royal expenditure in the public domain. Both the Queen (since 2001) and the Prince of Wales publish annual accounts detailing their use of Civil List and Grant in Aid expenditure and in forms which are modelled on normal accounting standards. Although they include the costs falling to government departments, these accounts acknowledge that they do not include the costs of security. The royal website puts ‘Head of State expenditure’ for 2006–2007 at £37.3 million or 62p per person in the United Kingdom, a decrease of 2.7 per cent in real terms over the previous year. The pressure group Republic claims that the true cost is more than four times higher if security and, although the authorities claim they are allowed for in the accounts, local government’s and the heir’s costs are factored in. Moreover, it would be wrong to maintain that the present position is universally acceptable.

Turning points The only one about which there can be any certainty that it will happen, though not certain when, is the accession. Much serious business has to be done, and how it is done will set the tone for the entire reign. The main areas to be negotiated are • the immediate event of the accession, including the style and title of the spouse, and the management of the former sovereign’s lying in state and funeral; • the financial settlement; • the nature of the Crown’s religious affiliations; and • the coronation. Accession Hitherto, the practice has been immediately after demise of the sovereign to summon a specially reinforced Privy Council meeting called the Accession Council. This recognises the fact of accession so that it may be proclaimed formally, and the new sovereign swears the Scottish oath, that is the oath required under the Act of Union to uphold the Presbyterian form of the Church of Scotland.2 The new sovereign may wish to express views about the title to be conferred on his spouse, though that could wait – and he would presumably wish to consult ministers. On marriage, he let it be known that his wife would be styled Princess Consort – ‘an obvious attempt to appease Diana’s hardline supporters’ (Starkey 2008). Normally, however, she would simply become queen automatically though, on the 1820 precedent of Queen Caroline, without any automatic right to be crowned.

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It is for consideration whether it would not then be sensible to take some further steps in advance of the coronation, assuming that there would be one. The Accession Council is arguably insufficient as an inauguration. Granted in particular the much more heterogeneous society that the United Kingdom has become, there could well be a case for developing its character to signal the new sovereign’s recognition of this fact. Further, after the former sovereign’s interment, new ways could be found to introduce the new monarch to the nations. These could include, for example, a high-profile event in Westminster Hall within the first few weeks following accession where a special assembly which included parliamentarians and religious, regional and communal representatives of all kinds came together to hear the new sovereign express his dedication to his role and those present acclaimed their support for him. During regional events, place could be found for the monarch to indicate his appreciation of the pluralisation of a more heterogeneous society by referring, amongst other things, to his wish to occupy a position more akin to being the Defender of Faith rather than of the Faith. Thus, he could at one and the same time reflect his own commitment to the spiritual life but with an openness, still as a committed Christian, to others. Action on these lines could help avoid all the weight falling on the more solemn formalities of a coronation which would, with or without a eucharistic element, remain a strictly Anglican and Christian event whatever be the length and variety of the religious guest list. Financial settlement This will require very careful handling. Granted ministers’ need to have harmonious relations, their reluctance to challenge the sovereign’s wishes would not, of course, necessarily be universally shared. The last Select Committee proceedings in 1971 were characterised with some asperity, particularly over the way the Lord Chamberlain stonewalled the Committee. Roy Jenkins (1971), then Shadow Chancellor of the Exchequer, thought the Houghton scheme appropriately respectful of the monarchy as well as of the legitimate rights of the House of Commons: ‘. . . I strongly suspect that we shall do something very near to this when we next have to make arrangements in this area’. Richard Crossman (1972), Shadow Lord President, remarked ‘The Monarchy cannot again behave with what I must say has been its almost indecent arrogance.’ Of course, the future political climate may be more benign. It will note that there is now much greater disclosure, and that the Prince of Wales had moved even further than the Queen by disclosing the amount of tax he pays. As sovereign, he will need to think very carefully about what sort of style requires what sort of Civil List support – especially in a situation where the Lancaster revenues will afford rather less leeway than the Duchy of Cornwall income. Should his public life be conducted entirely within a household setting, or could he make a clearer separation between the public and the truly


personal? Such a change would remove pressure to make funded ‘official’ interpenetrate the private and predominate as much as possible. Will the heavens fall if the C&AG signs off the accounts? Could the extent of the private fortune be stated at the beginning of the reign, and should future royal wills become disclosable? If not, why not? Religious affiliations The requirements placed on the sovereign and the present state of religious belief in the United Kingdom have been described above. The accession would give a rare opportunity to look at them again and, if desired, legislate before the coronation. The first question is whether the sovereign should swear to uphold any particular church and – in the case of the Church of England – its privileges. Whereas such oaths originally stem from a time when no distinction was made between the sovereign’s personal and institutional functions, that time has long gone. Similarly, no one would nowadays urge that the prohibitions against Roman Catholics are anything but discriminatory. The choices seem to be as follows: • Do nothing – the sovereign swears the Scottish oath, the Accession Declaration oath and the coronation oaths as they are. • Minimal – drop the Accession Declaration oath as simply redundant and tidy away those passages of the coronation oaths more difficult even for Anglicans, perhaps with rewording which includes recognition of and openness to other forms of Christianity and other religions. • Maximal – minimal plus removal of the Act of Settlement’s religious tests so that the sovereign would not be obliged to be in communion with the Church of England, and both he and his spouse and all in the line of succession could in future profess any faith or none. The Supreme Governorship role could then be converted into an optional patronage function and all appointing functions (for example, of bishops and other clergy) transferred to the Church of England. In practice the sovereign might prefer, as in disestablished Sweden, to continue in relationship with the Church of England, and coronations could continue though in a situation where more weight came to be placed on something like the developed accession activities suggested above. The Scottish oath could also go though – despite its redundancy granted the 1921 Act – there might be thought to be sentimental and constitutional reasons for keeping it.3 The coronation A coronation does not make a king. Rather, although also a religious occasion, it is nowadays predominantly a sacred event in the societal rather than the religious sense. Prime Ministers, Earl Marshals and Archbishops

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of Canterbury know all this. The Dean of Westminster is open to what is involved (Wynne-Jones 2006). They will know that the event is not just another quaint survival of the sort so much savoured by visitors to theme park Britain. And they will no doubt find ways of adjusting the ceremonies to respond to modern sensibilities, being themselves mostly programmed to avoid the ‘ “intellectualist” bias’ noted by Shils and Young in 1953.4

Scenarios How might Charles III fare in facing up to the situations he might find himself in beyond a ‘business as usual’ approach which manages – just – to scramble ingloriously through the early stages of the reign? Some possibilities are presented below: Modest programmatic change New approach to accession emphasises inclusive monarchy and permits lighter touch on coronation itself. Feudal representation at coronation played down and invitation list made representative of modern British state. Coronation oaths modified by Measure. Wife accepted as Queen but receives no provision from Civil List which is now designed to slim down size of active royal family. Statutory procedures for dissolution and government formation remove political pressures. Careful diplomacy ensures King’s acceptance as head of Commonwealth. Post-coronation consultation launched about nature of monarchy’s ties with religion. Scottish and Welsh politicians brought to accept beneficent functions of a UK monarchy. Future A – hostile ‘Business as usual’ has unhappy medium- to long-term outcomes. Sense of unfinished business. King increasingly crotchety and harangues ministers in public as well as in private to extent of bidding for popular support over their heads. A cut-down royal family gives the monarchy less reach and consequence. Government begins to treat King as part of the Opposition. Politicians increasingly make common cause and sideline the monarch into wholly routine ceremonial functions. Weekly Prime Minister audiences cease as the monarch is marginalized. Household troops abolished in ‘cost cutting’ defence review, and Metropolitan Police and Securicor patrol Palaces. Popular support forthcoming but unfocused and without instrument. After Australia and New Zealand become republics, Commonwealth ‘deposes’ King as Head. Finally loses what left of elite support, and talk grows of regency for ‘incapacitated’ monarch. Devolved assemblies increasingly hint that continuation of Union dependent on what they euphemistically call ‘modernisation’ of head-of-state functions. Nothing settles and nothing is resolved. Though the King behaves impeccably in hung Parliament case, lack of political capital is blamed for unstable outcome. Increasing ill health of


monarch leads to resort to regency and, finally, abdication. Republic option comes on to table in UK. Future B – benign Careful thought and preparation develops modest initial change into a winning formula. New accession and coronation arrangements resounding successes, with warm acceptance of spouse as Queen. Civil List negotiations notably amicable since rest on greater separation of public and private roles. Exemption from death duties of sovereign-to-sovereign bequests offered by Parliament but declined. Monarch embarks on programme to ‘normalise’ activities. Gives up horse racing and elite sports; inaugurates visit programme to comprehensives. Dissociates self from remaindered aristocracy and new plutocracies. Makes friends with all politicians, remains scrupulously impartial, and grows into mature statesman role accepted by the Commonwealth. Australia becomes a republic and then changes back. Scales down public lifestyle, for example donates Buckingham Palace to nation as arts centre; whilst in London dwells in protected Belgravia flat and uses St James’s Palace – run as part of the civil service rather than the household – for all ceremonial occasions. Exclusive link with Church of England broken but becomes UK patron not only of Church of England but of all other organised religions, though declines approach from Scientology. Grandchildren moved to Norfolk comprehensives which does them – grandchildren and the comprehensives – much good. Travels always by scheduled services though takes limousine to opening of Parliamentary sessions wearing lounge suit. Trooping of the colour and Remembrance Sunday full ceremonial retained. Gradually establishes acceptance as the only British functionary with disinterested roles stretching across devolved, decentralised polity.

Conclusion Could there, despite the optimism of the last scenario, still be a successful challenge to the monarchical principle in the foreseeable future? The Guardian hopes so, and one constitutional lawyer warns: ‘Monarchy is essentially a creature of the past and at some point in the future is very likely to collapse’ (Blackburn 2006: 139). Despite the real popular sentiment in favour of its continuation, the monarchy is beneath the surface a fragile institution. The silence of the crowds following Diana’s death5 suggested a new sort of popular belief that they, the public, somehow owned the institution and, equally, could disown it. Monarchy is not, after all, a necessary part of the United Kingdom’s political life. On the other hand, Guardian views alone are not going to topple it. Perhaps the important point to bear in mind is that Monarchy’s continuance has become implicitly more conditional than hitherto, including

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probably in the eyes of its practitioners. For a combination of reasons the game may become no longer worth the candle. To politicians the charades of deference and ritual could become ever more tiresome, especially if the sovereigns themselves proved personally unrewarding or positively difficult. For monarchs, the grudging attitudes and constant intrusion of the media could make withdrawal attractive. That is why the latter could well prove the decisive trigger. Whereas politicians would be wary of making overt moves, an opportunity delivered to them in such a way would be a defence against popular opposition to change. Indeed it could even be provoked, for example, by a Prime Minister insisting that the public side of the monarch’s life should be managed by staff answerable to ministers. If the monarch responded as alleged in response to a similar suggestion in 1972,6 the bluff might be called and certain events follow. On the other hand, such a chain of events seems at present unlikely, and it could still be that in practice it would only be the state failure, which no one wants, that would be capable of bringing the monarchy to an end.

Notes 1. Polled 10 February 2005 when it had been announced that Prince Charles was to marry Camilla Parker Bowles. 2. Should it be desired to alter the oath – although effectively made redundant by the Church of Scotland Act 1921 – which by statute falls to be sworn ‘in all Time coming at His or Her Accession’ – 5 Anne c. 2 – and which requires primary legislation for its amendment, no doubt the actual swearing in could be postponed for some reasonable though not unreasonably prolonged period. There is not the same timing difficulty should it be required to deal with the English accession and coronation oaths. There the normal interval between accession and coronation would give room for a more relaxed legislative timetable. 3. Whereas dealing with the Scottish oath would require primary legislation, all the English changes could be accomplished by resort to (non-amendable) Church of England Measure under the Enabling Act 1919. Since the latter requires an initiative which only the Church of England is empowered to make, that Church would need the will to reposition itself – not an option to be overlooked if it is not to be repositioned on less acceptable terms by the executive relying on its majority in Parliament. 4. Shils and Young (1953: 64), and contended in Birnbaum (1955). For recent speculation about the form of coronation see Blount (2002), Bradley (2002b) and Carr (2002). 5. As recorded by a Palace press officer (see d’Ancona 2007a) and its minatory quality by an Assistant Private Secretary (d’Ancona 2007b). 6. ‘the Queen threatened to leave Buckingham palace if a 1972 Labour plan went ahead to turn the Monarchy into a government department’ (Travis 2002).


Part III New Forms of Accountability


10 The New Human Rights Culture Colm O’Cinneide

Introduction Since the end of the Second World War, the concept that individuals have certain basic and inalienable human rights has developed, expanded and come to attract widespread support in modern societies (Klug 2000). There has been a wide-reaching embrace of ‘rights talk’ by international organisations, academics and civil society, while international human rights instruments have grown in complexity, scope and impact. The majority of states across the globe now incorporate legally binding human rights requirements into their written constitutional texts, following the example originally set by the inclusion of a Bill of Rights within the US Constitution. The United Kingdom is a partial exemption to this global trend. There is of course the venerable and time-honoured Bill of Rights 1689, which established the sovereign authority of Parliament to make law. The Magna Carta has also been recognised for centuries as giving expression to some of the basic rights and liberties traditionally enjoyed within the British constitutional system. However, the ‘political constitution’ of the United Kingdom, with its emphasis on the primacy of the authority of elected representatives sitting in Parliament, means that fundamental rights have historically been governed by political, not legal, processes (Griffith 1979). However, over the last ten years, the relationship between the powerful appeal of human rights and the changing UK constitutional system has generated a very dynamic process of change and adjustment. The (then) new Labour government in 1998 decided to make key provisions of the European Convention on Human Rights (ECHR), which the UK ratified in 1951, legally enforceable in UK law via the Human Rights Act 1998 (HRA) (see Figure 10.1). The HRA is an elegant compromise that preserves the sovereignty of the Westminster Parliament, while permitting legal remedies for violations of ECHR rights to be sought before UK courts and tribunals (Irvine 2003). (Before the HRA came into force in 2000, individuals could seek a remedy for 159

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X wishes to challenge a decision by body Y. Question 1 Can X claim to be a potential ‘victim’ of a breach of her rights under the ECHR, as defined by s. 7 HRA? • If No, X cannot bring a claim under the HRA and has to seek alternative routes to challenge the decision, perhaps through judicial review. • If Yes, go to Question 2

Question 2 Is Y a ‘public authority’ or performing ‘functions of a public nature’ as defined by s. 6 HRA, as interpreted by the UK courts? • If No, the HRA cannot be applied directly to Y. However, the HRA may still be of use to X: (i) X may be able to argue that the HRA should be given indirect horizontal effect, that is, relevant ‘ordinary’ legislation or the common law should be applied to Y in a manner that ensures that the ECHR rights of X are protected; (ii) Alternatively, X may be able to bring an action against a public authority Z, on the basis that by failing to protect X against the abuse of his rights by Y, Z failed to adhere to its positive obligations under the ECHR. • If Yes, go to Question 3

Question 3 Was the decision made by Y done in the course of giving effect to or enforcing provisions of an Act of the UK Parliament? • If No, X can proceed to challenge the decision on the grounds that it violated her rights under the ECHR: if the courts agree, then X will obtain a remedy. • If Yes, the courts will consider whether X’s rights under the ECHR have been violated. However, by virtue of s. 6(2) HRA, the courts may not be able to grant a remedy to X if a violation has occurred, as the HRA preserves the sovereign authority of Parliament to make law. Nevertheless, in such circumstances, the courts will ask Question 4.

Question 4 Can the Act of Parliament in question be interpreted in a manner that is ‘compatible with the under-lying thrust of the legislation’ (Lord Nicholls in Ghaidan v Godin-Mendoza [2004] UKHL 30, at [33]) so as to give effect to the ECHR rights of X? • If No, the courts cannot grant X a remedy. However, the courts under s. 4 HRA may be able to make a declaration of incompatibility, stating that the relevant Act of Parliament appears to be incompatible with the ECHR. This has no legal effect, although it may result in Parliament changing the law. However, X may then decide to seek a remedy before the European Court of Human Rights in Strasbourg. • If Yes: the courts may grant X the appropriate remedy.

NB: In determining what rights X has under the ECHR, s. 2 HRA requires UK courts and tribunals to ‘take into account’ the interpretation adopted by the European Court of Human Rights of the ECHR in its case law. The UK courts will in ordinary circumstances adhere closely to the case law of the European Court of Human Rights.

Figure 10.1 How the Human Rights Act 1998 works

Colm O’Cinneide

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violations of their ECHR rights only before the European Court of Human Rights in Strasbourg.) However, the HRA requires all public authorities, including the devolved assemblies and the Scottish Parliament, to respect the ECHR rights: only the Westminster Parliament retains its formally complete freedom of legislative action. This is why the HRA represents a very significant shift away from the traditional verities of the ‘political constitution’, with their emphasis on political freedom of decision-making, and towards a more ‘legalised’ constitution, where executive and legislative power is subject to greater checks and balances.1 The first edition of Constitutional Futures, written in 1998, identified this shift as potentially one of the most significant loci of constitutional change and transformation.2 This prediction has certainly come to pass. The HRA has become a significant driver of change in shaping the application of public power in the UK. It has also generated considerable controversy and has been the subject of strong political criticism. A desire to ‘repoliticise’ decision-making in areas such as national security and immigration control can be detected amongst some political decision-makers and media opinionformers. It is apparent that the shift towards a more ‘legal’ constitution that the HRA represents will continue to be a major axis of constitutional tension, change and development over the next ten years. Another area of potentially significant constitutional change is the relationship between international and European human rights standards, such as the ECHR, and ‘home-grown’ concepts of basic rights. The HRA incorporates the ECHR to stand in as a ‘proxy’ for the role played by home-grown bills of rights such as the Canadian Charter of Fundamental Rights and Freedoms in other jurisdictions. The ECHR was intended to embody in treaty form the UK tradition of civil liberties and was largely drafted by UK lawyers. In introducing the HRA, the Labour government argued that this legislation would serve to ‘bring rights back home’ (Home Office 1997). However, in the eyes of some critics, the ECHR and by extension the HRA lacks a sufficiently organic link to ‘native’ UK traditions. This has resulted in considerable political support for the introduction of a British Bill of Rights to supplement or possibly even to replace the HRA. This tension between reliance upon international standards and the cultivation of home-grown concepts of fundamental rights looks set to be another area of considerable constitutional activity over the next decade. Finally, when the HRA was passed in 1998, there were high hopes that incorporation of the ECHR would result in the promised new ‘human rights culture’ taking root across UK public administration (see Figure 10.2). The aspiration to create such a culture has by general consensus not been wholly satisfied (O’Cinneide 2004). The impact of the HRA has been more incremental and targeted than transformative and mould-breaking (Gearty 2004). Nevertheless, it is worthwhile considering in passing what the future shape of a ‘human rights culture’ may look like in the context of the UK.

162 New Forms of Accountability

‘A culture of human rights has two dimensions – institutional and ethical. So far as the former is concerned, it requires that human rights should shape the goals, structures, and practices of our public bodies [ . . . ]. But making a culture of human rights a reality also requires that individuals are able to understand what their rights are, and are able to seek advice, assistance, redress and protection if they believe that their rights have been violated or are threatened with violation [ . . . ]. So far as the moral or personal dimension is concerned, a culture of human rights could be characterised as having three components. First, a sense of entitlement [ . . . ]. Second, a sense of personal responsibility [ . . . ]. Third, a sense of social obligation [ . . . ]. A culture of respect for human rights would exist when there was a widely-shared sense of entitlement to these rights, of personal responsibility and of respect for the rights of others, and when this influenced all our institutional policies and practices. This would help create a more humane society, a more responsive government and better public services, and could help to deepen and widen democracy [ . . . ].’

Figure 10.2 Defining a ‘human rights culture’ Source: Joint Committee on Human Rights 2003: paras 3–9

Drivers of change While examining what the future may hold is always a hazardous and approximate undertaking, it is possible to identify key factors that may drive change in this fluid area of constitutional development. For the sake of classification, the key change drivers identified below are divided into two separate categories: ‘global’ factors, which involve transnational processes that may play out both within the UK and externally, and ‘constitutional process’ factors, which relate to internal developments within the UK constitutional system that may drive change in this context in particular directions. As will be seen, many of these factors tug in different directions on the axis between the UK’s historical commitment to the political constitution and the increased legalisation of its contemporary constitutional order. In addition, many of these factors may influence where the UK chooses to position itself on the axis between reliance upon international human rights standards and a preference for home-grown concepts of rights. They may also influence the future shape of the UK’s nascent ‘human rights culture’. Global factors The growth of the human rights movement has always been heavily influenced by pan-global factors, which have ‘fed down’ into debates about rights within the UK constitutional system. For example, the struggle against apartheid, the birth of the civil rights and gay rights movements, and the feminist revolution of the 1960s ensured that human rights became closely linked to concepts of equality and non-discrimination.

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Similar global factors are in play today. States face internal and external pressure to adhere to international human rights standards: there is a price to be paid in terms of domestic dissent and damage to the national image if rights standards are disregarded. Equality and non-discrimination remain important issues in contemporary Western societies, which are experiencing inflows of migrants and a resulting increase in cultural complexity. In response to this global trend, opinion-formers increasingly argue that respect for human rights is essential to protect vulnerable minorities and reconcile what are often competing demands for equality.3 Globalisation and migration encourage a focus on establishing and maintaining common panEuropean or even pan-global rights standards. The growing popularity of human rights as a progressive ideology of wide appeal continues to grow and deepen across the globe. All of these trends encourage an emphasis on the establishment of binding international standards. They also tend to push countries towards embedding or reflecting these international human rights standards within national legal frameworks. This may result in the ever-greater ‘legalisation’ of rights protection within the UK, as a return to the pre-HRA days of non-legally enforceable rights may come to seem wholly out of step with prevailing global trends. It may also result in a gradual expansion of legal protection for ‘new’ forms of rights, such as socio-economic rights, which are increasingly protected at international and national levels (Fredman 2008; Van Bueren 2002). These factors may also push the development of the UK’s rights culture towards an emphasis on the accommodation of group diversity. However, other global trends and factors may pull in the opposite direction. Events since 9/11 and the threat of Islamist terrorism have resulted in a new pan-global emphasis on national security, while religious and communal tensions have increased both at the global level and also at national level. At the international level, this has produced a greater tendency for states to act unilaterally (Sands 2006), as well as a greater wariness on the part of many Western states in respect of the expansion of international human rights standards. This process could be seen as a form of ‘repoliticalisation’ at the international level, with states being more reluctant to be constrained by normative human rights standards that they consider to inhibit unduly their freedom of action. At the domestic level, these global developments have generated a similar political backlash against giving human rights standards legal effect. The executive chafes regularly at the constraints imposed by the HRA and ECHR upon its freedom of action in dealing with the terrorist threat. This has resulted in the odd spurt of executive-judicial tension (see Chapter 7). In addition, ethnic and religious tensions are threatening to eat into the fragile political consensus that underpinned the UK’s policy of multiculturalism for much of the late 1990s and early 2000s. There is now a much greater


emphasis in government policy on encouraging integration and discouraging group separation than was the case hitherto, which again reflects the post-9/11 global climate. These global factors may therefore restrain the development of further and more rigorous legal controls upon political decision-making. They may also steer the development of the UK’s nascent human rights culture towards a greater emphasis on integration, common bonds and specifically ‘British’ definitions of fundamental rights, and away from reliance upon international standards and an expansionist approach to extending the scope of rights protection. It remains to be seen which of these factors or combination of factors may come to dominate or to exercise greater sway. However, individual oneoff events may also dramatically alter the political and legal climate at the global level, with significant consequences for the place of rights within the UK’s constitutional system. For example, a single detonation by terrorists of a weapon of mass destruction anywhere in the world might decisively swing the pendulum back towards executive freedom of action and away from the increasing legalisation of the constitution. This literal ‘nuclear scenario’ could unravel the entire international structure of human rights protection in a single stroke. At a less dramatic level, the outcome of current debates taking place across the Western world about multiculturalism, integration and accommodating religious and ethic differences will also be significant. This may shape the human rights culture that eventually emerges in the UK, and how diversity and integration, as well as freedom and restraint in the enjoyment of rights, are put into balance. Constitutional process factors The HRA has clearly contributed to a dynamic process of change and development within the UK’s constitutional system, with the key institutional structures of the state being affected in different ways, and certain specific actors having important roles in how this process of change has unfolded and will continue to unfold. It is worthwhile considering briefly how these institutional processes might drive change forward over the next decade. The Westminster Parliament The HRA was never intended to be a legal instrument that was solely of concern to the judiciary. The architects of the legislation intended that its provisions would encourage the Westminster Parliament to give greater consideration to human rights concerns in its deliberations. In other words, the HRA has to have both a legal and a political dimension.4 In addition, in 2001 the Joint Committee on Human Rights (JCHR) was established to exercise an oversight role over the operation of the HRA and the UK’s observance of international human rights standards in general. While its conclusions

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were not always implemented (see the government’s failure to modify the Prevention of Terrorism Act 2005 despite the criticism by the JCHR of the ‘control orders’ mechanism provided for in the Act: see Joint Committee on Human Rights 2005a and 2005b), the Committee has been a useful mechanism for transfusing rights values into the bloodstream of Westminster debate (Hiebert 2006b). However, rights discourse remains a somewhat alien transplant at present in the deliberations of the Westminster Parliament. If legislators make more use of human rights language and concepts, then this may yet ‘normalise’ human rights discourse as an integral part of the functioning of UK public life. Alternatively, if human rights remain an alien imposition from outside, predominantly experienced as involving external legal control of political decision-making, then their status may remain largely marginal within the mainstream of UK political debate. The executive and public administration The executive and public administration at large will also play an important role in shaping the future of the UK’s rights culture. Thus far, as the Joint Committee on Human Rights (2004) has noted, the response of public authorities in general to the incorporation of human rights has been largely confined to adopting compliance strategies designed to avoid negative judicial findings. If sustained, this will restrain the development of a meaningful rights culture, especially if external legal controls engender a persistent resistance and foot-dragging where human rights are concerned. Thus far, the executive’s response to the HRA has been mixed. The outcomes of certain cases have not been contested: some decisions have even been retrospectively welcomed (see Department of Constitutional Affairs 2007c). However, when judicial applications of the HRA have impacted upon national security and other areas traditionally left within the purview of the executive, the intrusion of these legal rights standards has not always attracted a warm welcome. Senior ministers have attacked particular judgments touching on human rights matters in highly charged language (BBC 2007; Bradley 2003; Travis and Dodd 2007). What appears to underlie this tension is resistance on the part of the executive to the idea of the ‘political constitution’ being substantially eroded by a legalised human rights process. Given the central role of the executive in shaping parliamentary and political debate, how this tension plays out over the next decade will be important in shaping the future of the UK’s rights culture. Judiciary In many ways, the UK judiciary have adopted a somewhat cautious role in applying the HRA. For example, the majority of the Law Lords in YL v Birmingham City Council adopted a narrow view of what bodies will


constitute ‘public authorities’ under s. 6 HRA and therefore narrowed the potential scope of application of the Act. In addition, the Law Lords have indicated that the HRA should be read as primarily designed to ensure that the UK remains in conformity with the Convention.5 As a result, they have been reluctant to depart from the case law of the European Court of Human Rights and to give a wider interpretation to any of the Convention rights incorporated in the HRA. However, within these relatively constrained limits, the judiciary have been ready to take a relatively interventionist role in interpreting legislation under s. 3 to secure conformity (Clayton 2004). In addition, in A v Secretary of State for the Home Department [2004] UKHL 56, the Law Lords rejected government’s arguments that they should confer a wide margin of discretion upon executive decision-making in areas such as counter-terrorism policy (Feldman 2006). It should also be noted that even prior to the HRA, the senior UK judiciary were beginning to articulate in case law and extra-judicial statements a view of the unwritten UK constitution as resting upon a foundation of fundamental norms, including basic rights, which are embedded in the common law (Laws 1993, 1995; Sedley 1995). In addition, there have even been suggestions by senior judges during the ‘ouster-clause’ controversy in 2004 that Parliament may not have the authority under the common law to override certain basic rights (Rawlings 2005; Woolf 2004).6 This suggestion remains controversial, being contrary to the assumptions of the political constitution (Griffith 2000), and the scope of ‘common-law rights’ remains unclear. Note also that the UK judiciary have historically been very reluctant to give effect to unincorporated international treaties within domestic law, even the core UN human rights treaties. However, the very fact that questions have been raised as to whether the doctrine of Parliamentary sovereignty can ‘trump’ fundamental rights shows the impact of human rights thinking within the institutions of the UK constitutional system. How the judiciary apply the HRA in the years ahead, and how they may apply ‘home-grown’ rights standards – whether in the form of common-law values or a hypothetical future Bill of Rights – will inevitably be a significant factor in driving change (and perhaps even triggering backlash).

The Equality and Human Rights Commission The Equality and Human Rights Commission (EHRC), established via the Equality Act 2006, has absorbed the previous equality commissions,7 taking over their functions and powers. It is intended to play a key role as promoting the desired new human rights culture, as well as enforcing compliance with the HRA and anti-discrimination law (O’Cinneide 2007). It has a useful if not overwhelming arsenal of enforcement powers, wider in some respects than those of the predecessor commissions but not extensively so. With this mixed bag of tools, the Commission is expected to play

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a crucial role in promoting the ‘rights culture’ in the years ahead. It will face difficulties in delivering on its extensive role. However, there is no doubt that the Commission has the potential to be a key driver of change in the years to come. The role of Non-Governmental Organisations (NGOs) in this context should also be briefly noted. Organisations such as Liberty and JUSTICE have proved very influential in shaping national debate on human rights issues. NGOs will remain a key change driver in this context in the years ahead, pushing, as with the EHRC, towards a greater legalisation of rights protection and an emphasis on compliance with international standards. Political parties and the Bill of Rights debate In contrast to NGO enthusiasm, the stance of the UK’s major political parties – with the notable exception of the Liberal Democrats – towards the HRA and human rights in general is at present best characterised as ‘arms-length’ in nature (see Figure 10.3). Neither the Conservative nor the Labour Party has enthusiastically embraced human rights discourse, partially as a result of sustained media assaults on the HRA. Labour ministers were responsible for the introduction of the HRA, but have at times distanced themselves from their progeny. The Conservatives have adopted an inconsistent but largely sceptical approach towards the HRA. Politicians from both parties

The Conservative Party A preference for the HRA to be repealed and be replaced with a ‘British Bill of Rights’, which would ‘enshrine and protect fundamental rights’ (Cameron 2006): it is unclear as yet to what extent such a Bill of Rights would be legally enforceable.

The Liberal Democratic Party ‘A British Bill of Rights should be part of a written constitution and must be built upon the human rights legislation we already have in place’; ‘repealing the Human Rights Act would be a massive step backwards for rights in Britain’ (Heath 2007).

The Labour Party Committed to initiating an ‘inclusive process of national debate to develop a British statement of values’, which could take the form of a ‘Bill of Rights and Duties’ (Ministry of Justice 2007c: paras 204–15). It is unclear whether this would be legally enforceable in any way. The HRA would not be repealed or replaced. NB: Nationalist parties within Northern Ireland, Scotland and Wales see this issue as one for resolution within a reworking of the UK’s overall constitutional settlement. The Unionist parties in Northern Ireland have expressed some scepticism about the value of a Northern Irish Bill of Rights (see below)

Figure 10.3 The stance of the UK’s major political parties towards a ‘British Bill of Rights’ in April 2008


have periodically called for a ‘rebalancing’ of how collective rights to security should be weighted against individual rights. Political suggestions for a ‘renegotiation’ of the ECHR periodically resurface, notwithstanding the apparently insurmountable political obstacles that this would present (see below). Over the last two years, there has been a gathering swell of political support for the introduction of a ‘native’ British Bill of Rights, which would in the eyes of its supporters be more organically rooted in the constitutional traditions of the UK than the alien transplant of the HRA. This suggestion was originally mooted by David Cameron MP, who suggested that such a British Bill of Rights could replace what he considered to be the flawed HRA (see BBC 2006). Subsequently, the Prime Minster, Gordon Brown MP, has indicated his enthusiasm for reopening a debate on a British Bill of Rights. A public consultation on the possible introduction of a British Bill of Rights is currently underway at the time of writing (Ministry of Justice 2007c). Jack Straw MP, the Minister for Justice and responsible for the consultation, appears to support the introduction of a Bill of Rights and Responsibilities. This would frame human rights as being balanced and contextualised by an equivalent set of individual responsibilities owed to society at large (see Straw 2008). Conservative thinking appears to run on broadly similar lines, with the crucial qualification that the Conservative Party would contemplate repealing the HRA. It is as yet unclear whether any such Bill of Rights and Responsibilities, if introduced, would be legally enforceable, or whether this Bill would instead be a non-legally binding statement of principles. It is also unclear what would be contained in the actual text of any Bill of Rights and Responsibilities. Would this Bill recognise the existence of social rights, such as a right to free health care provided through the NHS? Would the Bill confine itself to setting out the rights of UK citizens, in which case it would not cover the rights of non-nationals and be narrower in scope than the ECHR, which applies to everyone within the territory of a signatory state? Nevertheless, a head of steam has clearly been generated at present behind the idea of a home-grown Bill of Rights. While the reasons underlying each of the parties’ interest in a Bill of Rights vary, there appears to be some shared common themes, at least within the approach of the Labour and Conservative parties. Both of these parties wish to produce a ‘British’ account of human rights that is rooted in the particular historical and social context of the UK. Both see a Bill of Rights as playing a useful role in contributing towards the repair or reformulation of a British identity. Notably, however, there appears to be little or no serious political support for withdrawal from the ECHR within any of the major UK-wide parties. Therefore it remains to be seen what impact the Bill of Rights debate may have on the UK’s relationship with the ECHR and its international human rights commitments. It also remains to be seen how any Bill of Rights that

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emerges from this process will affect the remaining elements of the UK’s ‘political constitution’ and what concept of a ‘rights culture’ it will contain. Concerns have been expressed that the proposals for a British Bill of Rights may ultimately undermine the protection of the rights of non-nationals by reinforcing distinctions between citizens and non-citizens. In addition, the argument has also been made that a British Bill of Rights might add little to existing protection for rights under the HRA and could come to represent a rejection of an approach rooted in cosmopolitan pan-European standards in favour of a narrower and more parochial localism (Klug 2007). It should be noted that Liberal Democratic policy is squarely in favour of enhanced ‘legalisation’ of rights protection via a written constitution. It should also be borne in mind that achieving widespread agreement on the contents of a Bill of Rights may prove to be very difficult (see JUSTICE 2007). Devolution The implications of the unfolding process of devolution for the evolution of the UK’s rights culture are often overlooked. In Northern Ireland, the parties to the Belfast Agreement agreed that the Northern Irish Human Rights Commission would consult and advise on the scope for a Bill of Rights for Northern Ireland, which would reflect the ‘particular circumstances’ of Northern Ireland. The various parties to the Agreement reaffirmed their commitment to giving consideration to the introduction of such a Bill of Rights for Northern Ireland in the St Andrews Agreement in 2006 (Northern Ireland Office 1998). Consultation and political debate on the scope of such a Bill of Rights has been in train since 2000 (Committee on the Administration of Justice 2007: 3). While the debate on whether to have a distinctive Scottish Bill of Rights has hardly commenced, the Scotland Act 1998 requires the Scottish Parliament to comply with the ECHR. A separate Scottish Human Rights Commission has also been established. Therefore, it is apparent that the devolved regions are already developing different and more extensive forms of rights protection. There has been little, if any, discussion in England about the potential relationship between a British Bill of Rights and the proposed Northern Irish Bill of Rights (see below), or of how any subsequent legislation at the devolved level in Wales or Scotland could affect this debate. However, it is worth speculating whether the emergence of different levels of rights protection, and different perceptions of the importance and value of rights, in the devolved regions may have a destabilising effect on conventional orthodoxies. The European dimension Finally, the international and European dimension to the UK constitutional system should not be overlooked. The UK is embedded in a system of increasingly complex and evolving international human rights norms. The ECHR,


as interpreted by the European Court of Human Rights, has historically been the principal motor for driving forward the rights agenda within the UK. It is also at present the ultimate restraining mechanism on how state power is exercised by the UK and other European states (Greer 2006). In the absence of a fundamental renegotiation or collapse of the ECHR system, the UK constitutional system rights framework must accommodate the Strasbourg requirements. However, the Strasbourg court is coming under ever-increasing caseload pressure, as applications flood in from Russia, Turkey and Eastern Europe (Greer 2006). If the standard of the Strasbourg case law begins to buckle under this load, then the umbilical link to the ECHR may begin to prove a drag on the effectiveness and transformative potential of the HRA. This may generate increased pressure for a domestic rights instrument that better fits the political and legal context of the UK: however, it may also slow the development of rights jurisprudence, leading to stagnation. Membership of the ECHR and compliance with the case law of the European Court of Human Rights is a condition for membership of the European Union.8 This obviously restrains the ability of states to deviate from ECHR standards. Human rights standards have become recognised to a limited degree in EU law, in particular via the case law of the European Court of Justice (Alston and Weiler 1998). The provisions of the Charter of Fundamental Rights are intended to give greater clarity and definition to rights protection within EU law. The Treaty of Lisbon was intended to make the Charter a legally binding part of EU law, with potentially far-reaching effects within the sphere of European law.9 However, an opaquely worded protocol to the Treaty might have limited the applicability of the Charter to UK law, and in any case the Treaty’s fate looks very uncertain. Nevertheless, the European dimension will obviously remain a potential source of change and transformation in this context, possibly pushing the UK towards adherence to international requirements and also towards the increased legalisation of rights protection.

The axes of change In general, therefore, it appears that there is a complex web of varied and often conflicting drivers of change that may impact upon the UK’s nascent rights culture. The eventual outcome of the interaction of all of these different factors remains impossible to predict. However, despite the uncertainty, possible future scenarios and potential directions of change can be identified. As outlined in the introduction, the change drivers identified above can be described in general as ‘pulling’ the evolution of a UK rights culture along two principal but distinct axes (see Figure 10.4).

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‘Rights localism’ • Common law constitutionalism • Bill of Rights • Devolved Rights Charters • ‘Native’ rights tradition

The ‘Nuclear Scenario’ A departure from international norms?

‘Fruit of the Native Soil’ An enforceable home-grown Bill of Rights?

Legal constitution • Institutional controls • Unelected guardians • Tighter rule of law • More checks and balances • Activist judiciary • Enforcement mechanisms for Human Rights

Political constitution • Parliamentary Sovereignty • Ministerial discretion • Unfettered executive • Weak judiciary • National security a predominant concern

‘Back to the Future’? A return to the political constitution, but adherence to international human rights norms – a return to 1998?

‘Grumbling Acquiescence’? Legal controls based on international treaty standards

‘Rights cosmopolitanism’ • Focus on international and/or European standards • Key role played by international and/or European institutions Figure 10.4

Possible shapes of a UK rights culture


The political versus the legal constitution First, many of the change drivers outlined above are pushing the UK towards a more legalised rights culture. In contrast, demands for the executive to have a freer hand to respond to national security threats, political resistance to the judicialisation of key policy issues, and the UK’s strong constitutional tradition of adherence to the political constitution all exercise a pull factor away from legalisation and back towards political decision-making. Therefore, we see the existence of a strong tension between different concepts of how a rights culture should develop: some factors pull towards the established approach rooted in the political constitution, while others pulltowards an approach more suited to a ‘legal constitution’, where executive and legislative decision-making is constrained by a series of legal and other controls. In the context of rights, this axis will in all likelihood prove to be the dominant source of dynamism and change over the next ten years. Rights cosmopolitanism versus rights localism A second axis of tension can also be identified. Some of the drivers of change identified above pull the development of a UK rights culture towards a ready embrace of international standards. The HRA incorporates the ECHR and therefore requires that UK rights culture meets the requirements of the Convention. Globalisation and the multilayered nature of European constitutional frameworks encourage the cultivation of common international standards and the dissolution of national distinctions. This acts as a pull factor towards the development of a rights culture shaped largely by reference to international norms and pan-European norms, which, echoing Kant, can be referred to as ‘rights cosmopolitanism’. In contrast, other change drivers pull towards the cultivation of a rights culture that reflects national or local traditions. The new debates about the possibility of having a British and a Northern Irish Bill of Rights; the focus on cultivating a common sense of Britishness; and lingering political and popular resistance to norms derived from ‘Europe’ all may influence the growth of a specifically British rights culture, in the same way that it is possible to speak of a distinct US concept of rights, or a particular German take on rights values. Therefore, an additional axis of tension exists between ‘rights cosmopolitanism’ and ‘rights localism’, which may again have a considerable influence on the shape and growth of a UK rights culture.

Possible outcomes Different combinations of events, processes and institutional dynamics may result in the development of the UK rights culture being pulled along these different axes and into different quadrants of the matrix they form. Incorporation of the ECHR via the HRA pulls the UK constitutional system east, away from the old veracities of the ‘political constitution’, and towards greater

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legalisation of rights protection. It also pulls the UK south towards the quadrant formed by the ‘legal constitution’ and ‘rights cosmopolitanism’ axes: not alone is the protection of rights increasingly a matter of law as distinct from politics, but the form of rights protection is incorporated from the pan-European level in the ECHR. If other international human rights treaties begin to have an increased influence within the UK legal system, and the HRA overcomes its current media unpopularity and maintains its status as the primary instrument for protecting rights, then the UK will edge further and further into this quadrant. This may very well occur through default, if agreement on the contents and form of a British Bill of Rights proves impossible to achieve (see Figure 10.5).

After the convincing Conservative victory in the general election of June 2010, the Cameron government announced that it would proceed with the introduction of a Bill of Rights for Britain and repeal the HRA. However, this initially popular policy proved to be an early own-goal in the life of the new government. The proposed wording of the draft Bill of Rights and Responsibilities attracted considerable criticism, especially its references to the right to religious education, its emphasis on the need for courts to defer to the opinion of the relevant Secretary of State in matters of national security and its very minimalist reference to equality. Much of its substantive provisions appeared to be little different from the contents of the ECHR. Ministers also were obliged to accept that cases would still proceed to the European Court of Human Rights in Strasbourg, and acknowledged that the UK still considered itself bound by the Court’s rulings, despite grumblings from its own backbenches on this point. Sharp differences of opinion opened up as to whether the Bill should be legally enforceable in its entirety. The Welsh and Northern Irish devolved governments informed London in no uncertain terms that the HRA had to be retained within the devolved regions, with the Northern Irish First Minister pointing out that incorporation of the ECHR within Northern Ireland was a requirement contained in the Belfast Agreement 1998. A newly independent Scotland expressed no views on the matter at all. The proposed Bill of Rights and Responsibilities was soon sidelined, in favour of an exciting new initiative to provide citizenship lessons for migrant children in the form of annual re-enactments of the Battle of Agincourt. The judiciary continued happily to apply the HRA in the midst of this controversy. In addition, the influence of the EU Charter of Fundamental Rights was beginning to make itself felt, as was the development of social rights jurisprudence in Canada, South Africa and elsewhere. English courts, increasingly cheered on by the Bar, the EHRC and the law schools, gradually and cautiously began to expand the scope of the HRA by referring to other international human rights treaties. The Conservative government grumbled, as did elements in the Labour opposition, but with the international trend towards the embrace of rights cosmopolitanism flowing strongly in the wake of the discredited ‘War on Terror’ era, there was little the elected politicians could do but acquiesce. However, the popular media began to speak of Britain being a ‘judicial dictatorship’ . . .

Figure 10.5

“Grumbling Acquiescence” in legal cosmopolitanism


In contrast, repeal of the HRA would push the UK north and west, towards the political/localism quadrant, depending upon the degree to which the ECHR remained the primary de facto vehicle for ensuring respect for rights in the UK. So too would strong political or popular rejection of the legitimacy of legal rights protection, which might encourage judicial quietism in applying the HRA or common law standards. A terrorist attack of sufficient gravity may well trigger a sharp swing towards the political/localism quadrant. This may involve derogations from the ECHR and other international instruments, which would represent a turn towards ‘local’ approaches and a rejection of international standards (Figure 10.6). If one turns to the south-west quadrant formed by the political constitution and the rights cosmopolitanism axes, it may seem an unlikely future destination for the UK. However, prior to incorporation of the ECHR via the HRA, this was perhaps where one would describe the UK as being ‘located’, with rights protection treated primarily as a matter for political decisionmaking, but with a political consensus in place that the UK should adhere to its external human rights obligations. Any repeal of the HRA that left the relationship with the ECHR itself unchanged would pull the UK towards this quadrant (see Figure 10.7). Finally, the coming into force of a legally binding native UK Bill of Rights (plus or minus any attached duties and/or responsibilities) would push the UK constitutional system towards the north-east quadrant formed by the legal constitution/rights localism axes (see Figure 10.8).

A radioactive ‘dirty bomb’ is set off by Algerian terrorists linked to al-Qaeda in the centre of Paris in May 2012. Three die, but the fallout is largely contained. Nevertheless, a deep sense of shock and dread is felt across Europe. The UK government announces that it will proceed to deport 900 Islamic radicals living in London back to North African countries, even though they allege that they may face torture if returned. On being informed by the EHRC that this would contravene the case law of the ECHR, the Prime Minister announces that the demands of national security must override the indulgences of rights protection. Parliament suspends the application of the HRA, to popular acclaim. Finland calls upon other European countries to condemn the UK’s refusal to adhere to the ECHR: however, the majority of the EU member states back the UK. The deportation proceeds, with the UK courts unable and unwilling to intervene. A subsequent interim relief order issued by the European Court of Human Rights is disregarded by the government. Other European governments rapidly follow suit. The Prime Minister announces that in retrospect the HRA imposed excessive constraints on the ability of democratically elected governments to respond to crises, and that Britain should protect rights and liberties as it always had done, through political debate and the good sense of Parliament. There is general public support: however, Britain’s sizeable ethnic minority population begins to protest, alleging that they are effectively precluded from the political process and therefore from any way of securing their basic rights . . .

Figure 10.6 The ‘Nuclear Scenario’

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On winning the 2009 election, the new Conservative government moves quickly to repeal the HRA and replaces it with a non-legally binding ‘Bill of Rights, Duties and Values’. Government ministers become very fond of quoting text from this document on news programmes, even if the general public remains distinctly indifferent. The legal position returned to what it was prior to the coming into force of the HRA, with the exception that a slightly cowed judiciary becomes very cautious about applying judicial review to uphold common-law rights. However, despite backbench grumbling, the government continues to adhere to the ECHR and to accept the judgments of the European Court of Human Rights. The EHRC attempts to step into the gap left by the repeal of the HRA, using its investigatory powers to push for greater adherence to international human rights standards. This strategy has considerable success. However, the government’s huge majority in Parliament means that it ultimately retains the final decision on how far rights protection can extend. As human rights case law expands in other jurisdictions, UK lawyers and activists get increasingly restive and discontented . . .

Figure 10.7

‘Back to the Future’

In early 2009, the Labour government of the day surprises everyone by drafting a text for a Bill of Rights and Responsibilities that attracts wide approval, if little real enthusiasm. The Act becomes law in 2010. A majority of its clauses are legally binding to the same extent as is the HRA and, make provision for the protection of core civil and political rights, as well as a few extra and specifically ‘British’ entitlements, such as the right to jury trial in serious criminal cases. A few non-binding clauses are also inserted, recognizing the right of all to free health care provided by the NHS. After an initial stage where the well-established ECHR case law continued to be applied, the judiciary over time begins to apply the new Bill with increasing enthusiasm. Senior judges note with some puzzlement that decisions that were condemned when made under the HRA are now acclaimed as examples of Britain’s age-old attachment to liberty when made under the new Bill of Rights; they however just shrug their shoulders and get on with the job. As time develops, the ECHR/HRA becomes largely sidelined. However, controversies begin to develop with how the new Bill of Rights is interpreted. The Bill of Rights only protects ‘citizens’ against rights violations: as an increasingly hostile political climate develops towards non-citizens, this limited protection increasingly becomes a problem. In addition, a major constitutional crisis suddenly explodes in 2019, when the House of Lords strikes down the ‘Privatise All Health Care Act 2019’, on the basis that Parliament does not have the sovereign authority to abolish the NHS or act contrary to the Bill or Rights 2009. A constitutional crisis erupts, and Ministers begin to hark back with nostalgia to the more circumscribed days of the HRA . . .

Figure 10.8

‘The Fruit of the Native Soil’

Final predictions How the UK’s rights culture will develop over the next ten years remains unclear. It may be very unwise to venture some final predictions. However, setting aside the possibility of more 9/11-style events which irrevocably shift


the political landscape, a good case could be made that (i) the unfolding process of the interpretation and application of the HRA, (ii) the gradual embedding within the constitutional framework of institutions such as the EHRC with the mandate of protecting rights, and (iii) the attractiveness of the concept of a ‘rights culture’ in the current intellectual climate all mean that the trend that has existed to some degree since 1998 towards greater legal protection of human rights will probably continue. While everything remains possible, including a repeal of the HRA, the political obstacles to a wholesale repudiation of the ECHR mean that it is difficult to foresee a complete break with the Convention system of rights. What is less clear is whether the ECHR and other international and/or European institutions will continue to play the same dominant ‘driver’ role as they have done in the past, or whether ‘native’ British and/or devolved rights frameworks will grow up alongside them. At present, a British Bill of Rights appears to be a real possibility; however, many hurdles need to be crossed before any such bill sees the light of day, and also its contents and scope remain very uncertain. There exists great uncertainty as to what creating a genuine ‘rights culture’ involves. However, it is clear that it may be possible to secure an effective rights culture by a variety of means and combinations of different drivers. Rooting a rights culture in the fertile soil of national organic constitutional traditions may generate much greater acceptance of that culture than if it is rooted in the soil of cosmopolitan standards. The HRA suffers to some extent from the media and political perception that it is an alien transplant rather than a natural offshoot of UK constitutional traditions. However, an excessive emphasis on the national context can mean that the cultivation of a rights culture is hindered by complacency and a lack of external controls. The UK’s tradition of respect for civil liberties has been considerably revitalised by the influence of the ECHR, both before and after incorporation. It remains to be seen how this nascent rights culture is affected by global trends and constitutional processes in the years ahead.

Notes 1. I have argued elsewhere that the impact of ‘rights review’, such as provided for in the HRA, is best conceptualised as ‘orientating’ or ‘steering’ executive and legislative decision-making in rights-friendly directions rather than ‘constraining’ it (see O’Cinneide 2004). 2. The authors of the first edition identified the ‘minimal’ scenario for constitutional reform in this area as consisting of the incorporation of the ECHR. In contrast, the ‘maximal’ scenario was considered to be the full incorporation of the ECHR accompanied by the establishment of a human rights commission, with a domestic Bill of Rights in preparation or already embedded in the constitutional framework of the UK. It is indicative of the transformative processes unleashed by the HRA that this is one of the few areas discussed in the first edition

Colm O’Cinneide

3.

4.

5. 6. 7. 8. 9.

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where the current state of affairs lies closer along the spectrum to the maximal scenario identified in 1998 than to its minimal counterpart. See the discussion in O’Cinneide (2007) of the hope that a common floor of engagement with human rights would unite the different ‘equality constituencies’ coming together within the new EHRC. For example, s. 19 HRA requires ministers to certify whether a provision in a bill complies with the ECHR: this was intended to ensure sufficient scrutiny was given to the ECHR dimension of legislation in its progress through Parliament. See Al-Skeini v Secretary of State for Defence [2007] UKHL 26. See Jackson v Attorney General [2005] UKHL 56, per Lord Steyn at [102]. The Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission. Articles 6 and 7, Treaty on the European Union (TEU). See Article 8 of the Treaty of Lisbon, inserting a new Article 6 into the TEU: (2007/C 306/01).

11 Downward Slope? FOI and Access to Government Information Mark Glover and Sarah Holsen

Introduction Nearly 70 countries have introduced Freedom of Information (FOI) laws, 55 in the last 10 years alone (Banisar 2006). Some laws aim to strengthen democracy, while for others FOI is primarily a device to combat corruption. The UK Freedom of Information Act 2000 (FOIA) was part of the new ‘constitutional settlement’ ushered in by New Labour, who promised that it would initiate an era of greater transparency and accountability.1 ‘Open government is good government’, said the Lord Chancellor, Lord Irvine of Lairg, during a speech about the draft law (Irvine 1998). However, the political and administrative realities of FOI since implementation have tested government’s support of the law and, if international experience is any guide, will lead to constraints against information access in the future. FOI laws take from government the power to decide which information should be in the public domain and place it in the hands of the requester and the judicial system. The difference between the information people want and that government is willing to give has caused tension and led to restrictions to access laws in other countries. The governments of Canada, Australia and Ireland, for example, have constrained information access to varying extents by amending their laws and making cuts to their administration. Will the same happen in the UK over the next 12 years? Many drivers are pushing toward greater information access in the UK. One of these is the comparatively strong legislative design of the UK Act (see Figure 11.1), especially the inclusion of an independent Information Commissioner and Information Tribunal, the public interest test, and the requirement of proactive disclosure through publication schemes. FOI requesters, in particular the media, are pushing for more access, as are political parties and Parliament, to some extent. Technological development and international law also have an impact. 178

Mark Glover and Sarah Holsen

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The UK FOI Act grants a statutory right of access to government information held in any form and places public authorities under a duty to proactively release information through publication schemes.

Scope • Covers more than 100,000 organisations at all levels of the public sector. • Applies retrospectively to information held or collected before it came into force.

Exemptions • 23 exemptions; 15 require application of the public interest test (that is, information that falls within the exemption can only be withheld if it is in the public interest to do so). • The starting point of the public interest test is that there is a general public interest in disclosing information.

Fees • Authorities can refuse to process a request that would cost more than the ‘appropriate limit’ set out in the Act to find and compile the information (2.5 days of work worth £600 for central government and £450 for local government). • In practice, authorities do not make use of this provision or charge for administrative costs such as photocopies and postage; effectively there are no fees.

Appeals • There are four stages of appeal: internal review, the Information Commissioner, the Information Tribunal, and the High Court (only on a point of law). • The Information Commissioner has the power to order disclosure, unlike his counterparts in some jurisdictions who can only make recommendations. • Decisions by the ICO or Information Tribunal can be overruled by a ministerial veto.

Figure 11.1

Key points of the UK FOI Act

However, the trajectory for FOI based on what has happened abroad is a gradual weakening of the FOI law through administrative or legislative means. The main drivers behind this trend are disclosures of sensitive information that lead to embarrassment on the part of government, large numbers of requests and insufficient resources to process them, and a lack of internal government support for FOI. Other inhibitors to access are the growing move toward multi-level governance and contracting out of government work to the private sector, developments which place information in a ‘no man’s land’ of inaccessibility, as well as the complicated interface between privacy and access to personal information. In this chapter we seek to answer whether or not the UK FOI Act will follow its international comparators downhill over the next 12 years. To do this we first analyse the above-mentioned drivers which could push toward greater


access to information or toward less access to information, in the respectively named sections. Next we define the two dimensions most crucial to the state of access to information in 2020. Finally we describe four possible futures along those dimensions before concluding with our thoughts on which is the most likely and why.

Drivers toward greater access to information FOI requesters and the media: The pro-openness lobby The existence of a FOIA means little unless people use it. Awareness of FOI among the UK population appears to be rising – from 56 per cent in 2005 to 75 per cent in 2007 (ICO 2006: 25; ICO 2007: 25) – but few of those aware of FOI are using the law. The estimated 245,000 requests made in the first two years boils down to only 2.2 requests per 1000 people per year2 (Frontier Economics 2006: 1; Ministry of Justice 2007a: 6). The number of requests to central government in 2006 was 12 per cent lower than that in 2005 (Ministry of Justice 2007a) but can be expected to rise over the long term, as has occurred in Canada, Australia, New Zealand, and Ireland (see Figure 11.2). Journalists are the most visible FOI requesters. Through FOI they increase the circulation of government information and are the source from which most people hear about the law: 46 per cent of the population who reported awareness of FOI read about it in newspapers or magazines (ICO 2006, 2007). Journalists also lobby against attempts to restrict the Act. Most recently they played a significant role in ‘killing’ the Maclean Bill (see Figure 11.3). These roles can also converge: in Australia a campaign by journalists to raise the profile of FOI involves dedicating prominent pages in newspapers to information uncovered by specialist FOI requesters. A side-effect of such media use may, however, be increased ministerial and political sensitivity (for example, see Section on ‘Political sensitivity’). Information Commissioner’s Office and the Information Tribunal The Information Commissioner’s Office act as a driver toward greater access to information by promoting FOI to the public and requiring public authorities to comply with the law; the Information Tribunal acts as a further check on the latter. The ICO’s specific tasks are to promote the observance of the Act and its codes of practice and to order disclosure of information unless it falls under one of the exemption provisions. The ICO fulfil the first responsibility by providing guidance for both public authorities and members of the public, as well as through efforts to increase awareness of the Act, for example through their website. Their second task consists of considering and ruling on complaints made by dissatisfied requesters. Appeals to the Information Tribunal require the body to check the legal soundness of some of

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45,000 40,000

Number of requests

35,000 30,000 25,000 20,000 15,000 10,000 5000 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Years after implementation Canada Figure 11.2

UK

Ireland

Australia

Number of requests from first year of implementation

Sources: Statistics on UK Act, implemented 2005, from DCA (2006a) and Ministry of Justice (2007a); Canada Act, implemented 1984, from Access to Information Review Task Force (2002), Consulting and Audit Canada (2002), Treasury Board of Canada (1997–2008); Australia, implemented 1982 (ran for only 7 months of first year), from Attorney-General of Australia (1999, 2004, 2005, 2006) – all figures from 1982 to 1996 are to nearest thousand; Ireland, implemented in 1998, from Office of the Information Commissioner of Ireland (1998–2007). NB: Statistics on Ireland include all public bodies; only central or federal government for the other comparators.

The Freedom of Information (Amendment) Bill 2006–2007 was introduced by Conservative MP David Maclean in late 2006. A Private Member’s Bill, it progressed through the Commons to the Lords, where it failed to find a sponsor.

Aims of the Bill (1) Exempt all correspondence between MPs and public authorities; (2) Remove the Houses of Parliament from Schedule 1 of the FOIA.

Drivers The perceived need to ensure that constituents’ privacy would not be compromised by a misguided release under the Act (although no such complaints had been put to the Information Commissioner). MPs’ notions of parliamentary sovereignty: FOI could have been regarded as a chip away at the special status of MPs and Parliament. The proposed exemption could therefore be seen as a backlash against excessive legal constraints on a political constitution (see Chapter 1).

Figure 11.3

Abortive attempt to reduce the scope of the Act: the Maclean Bill


Constraints High-profile and negative media coverage made MPs reluctant to speak for the Bill and Peers reluctant to sponsor the Bill in the Lords. Select committee criticism: the House of Lords Constitution Committee (2007b) pointed out that the first aim would not be fulfilled because such information is not held by Parliament but by public authorities. The Constitutional Affairs Select Committee (2007: 17) argued that exempting Parliament from FOI would be ‘contrary to the culture of openness which . . . should prevail in the public service’.

What happened next? The Governance of Britain green paper reaffirmed that Parliament would remain subject to the Act. The Information Commissioner is updating guidance on ensuring that sensitive information relating to constituents is not released under FOI.

Future Prospects Even if there is appetite to amend the Bill, it is clear that the proposals would have to withstand substantial media ‘scrutiny’.


the ICO’s decisions; the Tribunal has made several robust decisions in favour of openness since it began hearing cases in late 2005.3 Political parties and politicians Through the media, FOI has gained a profile as a public good. Although those in power are generally not friends of the legislation because it can lead to disclosure of sensitive information (see Section on ‘Political sensitivity’), they also fear the backlash from unpopular decisions to restrict the Act. This explains how parties can learn to live with – and even advocate – the law. Prime Minister Gordon Brown has indicated his support for the Act, for example, in a speech about liberty in October 2007 (Brown 2007b). The Liberal Democrats have also proved to be a significant force in preventing restrictions on access to information, especially in stalling the Maclean Bill in Parliament (see Figure 11.3), and expressed their support for more robust funding of the ICO (Liberal Democrats 2007: 16). The Conservatives have also expressed their support for ‘true’ FOI, ‘in the broadest meaning of that term’ (Cameron 2007c, 2008). The soft power of parliamentary select committees Two committees have conducted three investigations of the FOI Act: the Constitutional Affairs Select Committee (CASC) – now Justice Select Committee (JSC) – and the Public Administration Select Committee (PASC). Their recommendations aimed to strengthen the legislation and administration


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of the Act, for example, urging the Ministry of Justice (MOJ) to encourage stricter compliance with the 20-day response deadline (House of Commons CASC 2006: 27) and to transfer to Parliament the responsibility for funding the ICO (CASC 2006: 34; CASC 2007: 19). Though government generally respects the committees’ investigations, it is under no obligation to accept their recommendations; indeed, it has recently rejected the JSC’s latest (Ministry of Justice 2007b: 10). Technology, the ‘information society’ and proactive disclosure Information and Communication Technologies (ICT) increase the circulation of information within society and provide government with the tools to disseminate information more directly. The UK FOIA drafters took this into account – to an extent – by including in the law a ‘publication scheme’ requirement, through which public bodies must provide a list of all categories of information that are already available to the public. Public authorities have also taken the initiative to publish on their websites a proportion of the information released as a result of FOI requests.4 This move is driven partly by a desire to preempt requests but is also a sign of greater openness (Ashton 2007). Apart from FOI, public authorities are making efforts to post information and place their services online. The government ambitiously aimed to put ‘all relevant’ services online by 2005 (see NAO 2007: 5). They are also trying to make records management more transparent. The aim of ‘Information Asset Registers’ is to describe, list and link to information held across departments (Cabinet Office 1999). Files and documents are also being transferred to Electronic Document and Records Management Systems (EDRMS) or databases of internal departmental documents with information about each document (metadata) – the government aimed to establish them in all departments by 2004 (National Archives 2001). This may lead, in effect, to registers of public files such that ‘it is possible to keep the contents of a document a secret, but rarely its existence’, as is the case in Sweden (Roberts 2006: 220). Lists of documents from the EDRMS may be published or made available through FOI requests. Access to information in international law The FOIA is not immune to external influences, some of which may strengthen the right to access information. The Council of Europe (2003) has adopted Recommendation (2002)2 on Access to Official Information, which provides a ‘minimum standard’ for information access at a national, regional or local level. The Group of Specialists is revising the regulation with a view to making it a ‘legally binding instrument’. As a number of countries (the UK included) are reluctant to sign a treaty that would require a modification of domestic legislation, the regulation is likely to remain a constraint on certain amendments that would restrict access rather than act


as a driver toward greater access to information. The European Reform Treaty could provide competencies for FOI by making the Charter of Fundamental Rights legally binding – although its applicability to the UK may be limited (see Chapter 10). The possible changes to the Act or its administration that may result are shown in Figure 11.4.

Drivers toward less access to information Political sensitivity The adversarial nature of party politics and the vigilance of the media make ministers uneasy about the release of potentially sensitive information. They and other government leaders stand to lose a great deal if potentially damaging information is disclosed and may therefore exert increasing control over disclosure. Though UK ministers have not yet made use of their veto power; those in Australia use ‘conclusive certificates’ to exempt entire documents (Transparency International Australia 2006). In Canada the Co-ordination of Access to Information Requests System (CAIRS) alerts senior federal officials to politically sensitive questions; the MOJ’s ‘Clearing House’ plays a similar, if more limited, role. With the constant threat of politically damaging information releases, it is easy to imagine increased ministerial resolve to amend the Act (see Figure 11.3). The cost of FOI FOI costs time and money. Without sufficient resources to cover the costs of processing FOI requests, delays lengthen and backlogs grow, which in turn slows down the release of information. Currently the delays are noticed especially by those who have appealed to the ICO, where the number of complaints increased from 2373 in 2005 to 2630 in 2007, and the backlog stretches back at least two years5 . Since 2006 the Commissioner has publicly asked the MoJ for more funds to fulfil his responsibilities.6 Depending on future resources, the ICO’s capacity to promote FOI and its role as a compliance enforcer could be further constricted. Despite the costs, the UK government does not charge people fees for making requests. Because requesters can (and some do) make as many requests as they like, there is no disincentive for request ‘attacks’ by those with a grievance toward an authority, or journalists’ ‘fishing’ expeditions.7 Introducing fees might make the request and appeals systems more manageable by acting as a deterrent and restricting access. Although the government dropped proposed changes to the fees regime after two public consultations in 2007, this subject is likely to be revisited within the next two to five years. The Irish government introduced fees five years after the Act was implemented (McDonagh 2006) and the Australian government, four years after implementation (Australian Law Reform Commission 1995).

Change

Examples in other jurisdictions

Driver

Mechanism

Likelihood

Repeal exemptions or change exemptions from absolute to qualified

New Zealand (1987 Amendment Act)

FOI requesters, Parliament, Political parties

Primary legislation

Low

Transfer responsibility for funding ICO to Parliament

Scottish Information Commissioner is funded by Scottish Parliament

ICO, Parliament (especially select committees) MOJ

Primary legislation (to give the ICO the same autonomy in terms of budget and staff as the Comptroller and Auditor General)

Medium

Increase Parliamentary support for the ICO in the form of time and effort dedicated to FOI by select committees

PASC’s role in scrutinising the Parliamentary Ombudsman

Parliament, FOI requesters (especially media)

Primary legislation

Low

Improve administration of the Act

Attempts made to do so in Canada (report card system) and US (EO 13,392)

ICO, Parliament (especially select committees) MOJ

Administrative

Medium

Figure 11.4 Potential changes toward more liberal access

185

186

Designate time limit for internal review

Australia

ICO, Parliament (especially select committees)

Primary legislation

Medium-low

Remove ministerial veto

New Zealand

To stop its use pre-emptively or otherwise

Primary legislation

Low

Provide web-based access to metadata, government files, and more government-held information in general

Australia,US (1996 E-FOIA Amendments)

Technology, FOI requesters, compliance challenges, TNA and OPSI

Administrative, unless made mandatory by law

Medium-low

Increase web-based service provision

UK’s Directgov and Business Link, Australian states

Technology, FOI requesters

Administrative

Likely

Extend scope of the Act to private companies carrying out public functions

South Africa

FOI requesters, especially the media

Secondary legislation (as provided for under Section 5 of the Act)

Medium

Figure 11.4

(Continued)


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Lack of support and low morale The work of an FOI officer is difficult (see for example McDonald 2006). Without support from ministers and/or senior management, some FOI officers face resistance from the colleagues who hold the information in question and become demoralised. Survey data suggests that negative attitudes toward FOI in public authorities are growing – from a reported 7 per cent to 18 per cent from 2005 to 2007 (Holbach et al. 2007: 9). In Canada, practitioners still suffered from a lack of morale and high turnover after 20 years of access to information (Flaherty 2001: section 2.2.2). Government by network Contemporary governance is carried out by a ‘core’ executive that coordinates extensive policy ‘networks’ (Smith 1999). Drawing on Roberts (2006), there are three specific aspects of these networks that inhibit the development of greater access to information: national security, diplomatic pressures, and privatisation. Domestic and international security organisations share information through networks, which are infamous for their opacity to outsiders. In the context of ‘multi-level governance’, relationships are managed by ‘diplomatic confidentiality’ and ‘third-party veto’, in which nations submit documents to multi-national institutions with the proviso that they not be released. The gradual transfer of public sector functions to the private sector also poses a challenge because certain FOIA exemptions (such as s. 41, information provided in confidence, and s. 43, trade secrets) ‘could lend themselves to abuse’ (Birkinshaw 2005), and require increased recourse to legal advice, which would add to the cost and time required to deal with requests. Privacy and data protection A careful approach is required when confronting the complex interface between FOI and data protection. Differentiating between personal and official information is complicated. The FOIA, enacted after the Data Protection Act (DPA), attempts to strike a balance between privacy and FOI, and in doing so establishes rather complex rules that public authorities have to apply in considering requests for information including personal data. Privacy is of more immediate concern to individuals, and likely to arouse stronger feelings than FOI: a recent ICO survey found increased awareness of the FOIA accompanied by an increased concern about the security of private information (ICO 2007). The primacy given to DP in Australia was one of the key reductions of the strength of that Act (Waters 2002). The possible changes to the Act or its administration that may result are shown in Figure 11.5.

Axes The UK is moving toward a legal constitution. How recent reforms – FOI included – have helped the UK in this direction is set out in Chapter 1. But

Examples in other jurisdictions

Driver

Mechanism

Likelihood

Create absolute exemptions for cabinet papers and policy advice

Australian states of Victoria and Queensland (for Cabinet papers and Ministerial briefings) US (deliberative process privilege under Exemption 5; application of Presidential Records to some cabinet council papers) Canada

Political sensitivity, leadership

Primary legislation

Medium-low

Exempt Parliament from act

Parliament exempt from outset in Canada, Australia, USA, New Zealand

MPs

Primary legislation

Low

Omit to add newly created bodies to FOI Act schedule

Canada, Ireland

Compliance challenges, political sensitivity, costs; oversight

Administrative

Likely

Introduce up-front fee for requests, internal reviews, complaints and/or appeals

Ireland, Australia, US

Costs

Secondary legislation (negative procedure)

Likely

Broaden parameters of what can be counted toward fees calculation

US (aggregation), Australian state of Queensland, Australia (federal case law allows aggregation of requests towards refusal on grounds of excessive workload)

Costs

Subordinate legislation (negative procedure)

Medium-likely

Figure 11.5

Potential changes toward less liberal access

188

Change

Reduce budget for FOI compliance and/ICO

A universal feature of FOI regimes

Costs

Administrative

Likely

Lengthen 20-day deadline for responding to requests

US (20 ‘working’ days now, but with much court-indulged flexibility) Canada and Australia (30 days)

Compliance challenges

Secondary legislation (affirmative procedure – s.10(4))

Low

Use ministerial veto

NZ (though only in the first few years) and Australia

Political sensitivity

Administrative

Low

Create centralised FOI database for all FOI requests

Canada (CAIRS); Clearing House (currently central government requests only)


Administrative

Low

Develop more complex review procedures led by communications staff and ministerial staff within departments themselves

Canada


Administrative

Likely

Appoint less pro-openness information commissioner or let pro-openness commissioner go

Canada


Administrative

Medium-low


189


what might happen between now and 2020? The specific characteristics of an access to information right regulated under either a political or legal constitution are set out in Figure 11.6. Assuming the FOI Act is not repealed, a purely political constitution is not possible. But there are aspects of a political constitution that may develop in the future – any restriction of the strength of the Act makes it a less effective legal constraint and therefore represents a move toward the political regulation of access to information. It is important to note, however, that political regulation of access to information does not necessarily equal less access to information: there were increases in access to information long before FOI came into force (see Figure 11.7). Based on these two axes – the extent and nature


Legal constitution

• Internal self-regulation; • Executive discretion; • Parliamentary accountability (Parliamentary Questions, select committee probing); • Political control over disclosure (at the government’s initiative); • Cultural change (voluntary disclosure)

• Statutory right to information; • Constraints on executive; • External accountability (Information Commissioner, Information Tribunal, High Court); • Reduced political control over disclosure (at requesters’ initiative); • Institutionalised adversarialism (enforced disclosure)

Figure 11.6 Access to information under a political or legal constitution

1977: Croham Directive on Open Government issued 1984: Data Protection Act 1985: Local Government (Access to Information) Act 1985 1987: Access to Personal Files Act 1988: Access to Medical Reports Act 1989: Official Secrets Act 1989 repeals Official Secrets Act 1911, criminalising only release of information which endangers national security. 1990: Access to Health Records Act 1991: Publication of Citizen’s Charter (openness one of six key principles) 1992: Environmental Information Regulations (EIRs) 1992: Publication of Questions of Procedure for Ministers and list of Cabinet Committees 1994: Code of Practice on Access to Government Information 1994: First report of Committee on Standards in Public Life; openness one of the ‘seven principles of public life’ 1999: Code of Practice on Access to Scottish Executive Information takes effect 2000: FOI Act 2000 passed 2002: FOI (Scotland) Act 2002 passed 2005: FOIA 2000, FOISA 2002 and EIR 2004 come into force

Figure 11.7 Enabling access to government information: Some examples Source: Wilkinson (1998); McDonald (1998)


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of access to information – we develop four scenarios for the future, which follow below.

Scenarios Death by a Thousand Cuts Now that the FOI Act is in force, a return to an access to information regime regulated by a purely political constitution is not politically possible. The clock cannot be rewound; no FOI law has been repealed. Too many constraints prevent this from happening: media pressure, parliament and the general public among the most powerful. But FOI laws can be amended to reduce the burden on government, as well as undermined through administrative means. We refer to this as death by a Thousand Cuts. Some administrative cuts would be deliberate while others would result from general staffing cuts, oversight or neglect. The most obvious cut is a reduction of FOI staff and funding for complaints and appeal processes. A decrease in resources for FOI officers and units would result in processing delays and an increase in complaints. If the Information Commissioner’s budget were not augmented to deal with the increase, his role as the FOI-compliance enforcer would become less and less effective. Without a functioning appeals system, authorities could refuse to disclose information safe in the knowledge that their case would not be examined for a long time. Complaints taking more than two years to be decided by the Commissioner would become more frequent. This in turn could embolden authorities to play for time, delaying disclosure indefinitely. A second form of slow strangulation is a reduction of FOI’s scope by failing to make new government organisations subject to the Act. Currently all bodies subject to the FOIA are listed in Schedule 1. While some categories of organisations included in the schedule are broad – ‘any government department’ – many authorities are listed by name. If newly created bodies are not added to this schedule, the cumulative impact would be a reduction of the Act’s scope. A further way of indirectly reducing the scope of FOI is by privatisation: the more government services are privatised, the more those privatised services are likely to fall outside the Act. A third way of reasserting the political constitution while restricting FOI would be for ministers to intervene more often in individual disclosure decisions. FOI decisions are already referred to ministers in sensitive cases, but the ministers could become more involved. They could also start to use their veto power. A use of the veto would lead to parliamentary and media protest; however, the gradual administrative erosion of FOI could go largely unnoticed. Administrative restrictions would not immediately catch the attention of the media or watchdogs; indeed, they might not even be noticed by the authorities themselves. For a government that wishes to undermine FOI by stealth


FOI began strongly in Australia with the investment of significant resources. Over 600 new staff posts dedicated to FOI work were approved. The central FOI Branch in the Attorney-General’s Department gave a strong lead in training and supporting departmental FOI officers. The Administrative Appeals Tribunal (AAT) laid down good case law. But after a few years it gradually fell apart: • FOI staffing allocations were reduced from 600 to 400, then 300, then 150 posts; • Charges for decision-making time (at $20 per hour) were introduced and charges for search and retrieval were increased from $12 to $15 per hour. These increases in fees and charges reduced the use of the Act in the area of non-personal requests; • Since the introduction of a $200 application fee for appeals (then $300, currently $640) the number of AAT cases has decreased, as has the body’s expertise in FOI review; • The central FOI Branch was moved to the Prime Minister’s Department and its staff number has been reduced; • Ombudsman reports in 1999 and 2006 were critical of poor FOI administration and the uneven culture of support for FOI in government agencies, especially at senior management levels. NB: With thanks to Megan Carter for this information. Figure 11.8 Australia: How to erode FOI by stealth

(or which cannot get legislative changes through Parliament) a thousand administrative cuts is the best strategy (see Figure 11.8). Legal Trench Warfare In this scenario future governments wish to restrict the impact of FOI, but do so overtly. They introduce legislative amendments to reduce the scope of FOI and curb demand, and they resist disclosure by contesting every legal argument before the Information Commissioner, the Information Tribunal and the courts. FOI degenerates into legal Trench Warfare. This is broadly what has happened in Australia and the USA. The most obvious way of curbing demand is by tightening the fees regime. This can be done by delegated legislation, but new fees regulations would be subject to negative resolution, and would almost certainly be challenged in Parliament. The Brown government discontinued proposed changes to the fees regime in 2007, possibly because of the difficulty of getting parliamentary approval. But the governments in Australia and Ireland introduced significant increases to their fees after several years of operation of FOI, and it is likely that a future UK government will try again. Widening the criteria for charging, for example, allowing consideration and consultation time to be counted toward the maximum cost limit, would make it easy for government to justify refusals of requests for sensitive or controversial information. But such a move would be easier than introducing up-front fees. A softer alternative might be to increase the response deadline. A longer response period,


193

for example 30 days as in Canada and Australia, would give public authorities a little more breathing space but would do nothing to reduce overall workload. Legal Trench Warfare would be compounded by increasingly complex case law. The UK Act’s exemption provisions are complicated, and their complexity is increased as cases are interpreted by the Information Commissioner and the Tribunal. Soon only specialist lawyers will be able to advise on the extent of commercial confidentiality or the interface between FOI and the DPA. The need to seek legal advice on exemptions may cause – or be used to justify – further delays in responding to requests. Only the most determined and well-resourced requesters will be willing to fight the long legal battles needed to get access when the government resists disclosure. These are likely to be business organisations, their lawyers, some media requesters, and wellorganised interest groups. ‘Ordinary’ requesters could be further deterred by fees for appeal to the Information Commissioner and to the Tribunal (see Figure 11.9). E-enabled Open Government Under a political constitution openness is also possible, as every measure to augment access to government information before the FOIA was passed demonstrates (see Figure 11.7). While the FOIA removes executive discretion from the disclosure process, it is possible to imagine liberal access to information provided by disclosure at the government’s initiative. Technology plays an important role in this scenario. The government has already expressed its wish to reduce the number of FOI requests by increasing the amount of information made available (Ashton 2007), which they do in part by disclosing information through electronic means. One way to strengthen this scheme would be to raise the standard and scope of publication schemes; an initiative to do so is currently being undertaken by the Information Commissioner’s Office, with updated schemes due across the public sector in 2008/2009. Another enterprise in proactive disclosure is webpages dedicated to listing selected FOI requests and the information released as a result. The detail and extent of information published on these pages (sometimes called disclosure logs) vary but central government, in particular, seems to be an enthusiastic implementer. Efforts could be made to encourage this across the public sector. An extreme version of this scenario could be the end of FOI as we know it, as the opportunities for disclosure of information independently of FOI far outnumber those through it. Authorities could also expand their presence on the World Wide Web, providing more information about organisational functions and performance (for example, organisational structure, statutory responsibilities). Visitors to the website could browse a departmental file catalogue, view online the files which are already open to the public, and make FOI requests for those which are closed. There would still be tension between


Restricted access to information

Death by a Thousand Cuts · FOI starved of resources and neglected · New public bodies not brought within FOI regime · Privatisation leads to more government activity drifting outside FOI · Ministers exert tighter control over disclosure in sensitive cases · Protests in Parliament over erosion of FOI, but to no effect

Legal Trench Warfare · Government resists disclosure, contests every legal argument · Lots of complaints to ICO, appeals to Information Tribunal · Appeals to the High Court · Only determined, well resourced requesters get access to information


Legal constitution

E-enabled Open Government · Disclosure at the institution’s initiative · Emphasis on proactive disclosure · Government on the web · Greater access to departmental file directories

Enforced Open Government · Significant amount of information disclosed through FOI · Well-resourced ICO · Increasing number of requests · Few to no restrictive legislative amendments to the Act

Liberal access to information Figure 11.9 Future Access-to-Information scenarios

what government wants to keep secret and what the public want to see. But given the information available, this could be confined to scuffles at the borders between government and elite political actors such as MPs and journalists.


195

Enforced Open Government Open government will never mean access to all information held by public authorities. There will always be limits to what they are willing to disclose and tensions between requesters and responders surrounding response and appeal processes. This is especially true if information disclosure still depends on a functioning legal mechanism. However, government can be pushed toward greater openness through legislative and administrative changes that strengthen the FOIA. Legislative amendments in this scenario would be of the kind that widen the scope of the Act and limit administrative failures. One such change would be a statutory time limit for internal reviews, ICO case decisions and Tribunal rulings, which would prevent reviews and appeals from disappearing into a black hole of bureaucracy and endless delays. Another, the removal of the ministerial veto from the Act, would communicate that the highest levels of government are not paranoid about disclosure. The government could also increase the number of organisations subject to the law to include private entities that provide services to the government. This is part of the South African law and, in fact, is currently being considered in the UK; a public consultation on the subject ended in February 2008. Of course, time limits on reviews and appeals are only effective insofar as the bodies that carry them out have sufficient resources to meet the deadlines; similarly, a larger list of public authorities subject to the Act means the possibility of more information requests. Given that the number of requests and appeals is expected to grow with time, there will be an increase of demand on the time of FOI officers and other public servants, and ICO staff and members of the Tribunal, which would require a corresponding increase in funding for all involved in FOI administration. This could lead to restriction of the Act. If a functioning system attracts increasing numbers of requesters, eventually it would collapse under the weight of requests and backlogs. This is the paradox of FOI: it can only work well if relatively few people use it. In this scenario then, the government would have to consider the introduction of fees, or the proactive publication of more information.

Conclusion Could the UK’s FOIA turn out to be unique among access to information regimes and buck the downward trend common to other countries? This is difficult to imagine. Even the New Zealand Official Information Act regime, which is considered one of the most successful by experts, is plagued by delays and resistance to disclosure at top levels (White 2007). FOI institutionalises a tension between government and requester; the relationship between them will never be smooth. Even the pressures described in the Enforced FOI scenario – in which FOI leads to greater openness – may ultimately lead to


its restriction. For this reason, the future for access to information in the UK is likely to follow a downward slope. The combination of political sensitivity and the burden that public authorities perceive FOI to be will almost certainly lead to a restriction in the number of requests, either through the broadening of the fees regime or through implementation of up-front fees. Restriction over the long term will require adjustments in the fees in order to prevent a large increase in requests. Government will also likely make some of the administrative cuts laid out in the first scenario, which would bring less negative publicity but effectively weaken the law. Unless the government’s consultation on private entities becoming subject to the Act leads to robust measures, the changing nature of governance may also outpace the effectiveness of FOI as a policy instrument. The scenarios of restricted access – Political Secrecy and Death by a Thousand Cuts – will be difficult to sustain: the first is time-consuming; the second is antagonistic. One scenario, however, does appear sustainable – E-Enabled Open Government – and could satisfy both government and openness advocates. By reducing the need for FOI, government largely retains its discretion over the disclosure of information. This in turn reduces the financial cost of FOI. Moreover, the amount of information potentially disclosable – mainly through the internet – dwarfs the amount that could be disclosed through even the most liberal FOI Act. The role of information and communication technology is a wild card in predicting FOI futures. Unlike Canada, Australia and New Zealand, the UK Act came into force during the ‘information age’. This is the main reason the UK Act might just end up on an upward slope.

Notes 1. For the purposes of this chapter, we focus on the Freedom of Information Act 2000, which covers UK central government authorities and local authorities and public services in England, Northern Ireland and Wales. Scottish authorities are subject to the FOI (Scotland) Act 2002. 2. This figure is based on the number of people living in the UK; in fact, anyone in any part of the world can request information from UK public bodies. 3. See for example: Department for Education and Skills v Information Commissioner And Evening Standard, EA/2006/0006. 4. In January 2008, Norman Baker MP asked departments for a percentage, which ranged from 1 to 5 per cent (see Campaign for Freedom of Information 2008). 5. E-mails to Sarah Holsen from Information Commissioner’s Office (ICO) on 10 August 2007 and 27 February 2008. 6. ‘We are holding on-going discussions with the Ministry of Justice, who provide the funding for us’ (Thomas 2007). 7. A public authority can, however, refuse under the law (s. 14) to answer requests that are deemed vexatious or repeated.

12 Watchdogs of the Constitution – the Biters Bit? Oonagh Gay and Barry K. Winetrobe

Introductory Modern ‘constitutional watchdogs’ began with the mid-19th century creation of the Comptroller and Auditor General (C&AG) – the civil service Commissioners had been created a decade earlier, but did not become an external ‘watchdog’, in the modern sense, until the late 20th century – and have proliferated since the establishment of the Parliamentary Commissioner for Administration (PCA) in 1967. Previously, constitutional oversight was largely undertaken by parliamentary, quasi-judicial or administrative means, supplemented by legislation to correct perceived gaps (such as Honours (Prevention of Abuses) Act 1925 following the ‘honours scandals’ of the early 20th century). The decline of public trust in traditional political institutions since the 1990s has led to the creation of a collection of new ‘constitutional watchdogs’ designed to be, to some degree, independent of both Parliament and Government (see PASC 2007a). The 1960s debates over an Ombudsman exemplified tensions about whether free-standing ‘watchdogs’ should be separate from, though complementary to, Parliament (and the courts), or be regarded as an extension of Parliament. By ‘constitutional watchdogs’ we mean here those offices/bodies established to ensure acceptable standards in the conduct of public business, separate from (or, in some cases such as the C&AG, as well as) issues of ‘efficiency’ or ‘effectiveness’. This oversight is designed primarily to provide independent, external assurance to the public, Government and Parliament that government is being conducted properly. Here, we distinguish watchdogs from bodies such as utilities regulators (House of Lords Constitution Committee 2004), consumerist ‘ombudsmen’ and ‘non-core constitutional’ independent accountability mechanisms (such as the statutory Intelligence and Security Committee which oversees the security services). The classic watchdogs – C&AG and PCA – have been traditionally regarded as extensions of two core parliamentary functions of audit of public money and redress of grievances. Added to them are bodies involved with issues of public appointments, core aspects of democratic governance or ethical 197


conduct. Devolved watchdogs have also been created, especially in Scotland, where an extensive system of ‘parliamentary commissioners’ has developed. There have also been ad hoc roles, such as the PCA in the 1990s overseeing the non-statutory Code of Practice on Open Government and the C&AG advising on the operation of the Ministerial Code during the Blair Government. The current list of UK (including England and England/Wales) ‘constitutional watchdogs’, as defined here, is set out in Figure 12.1.

Name of watchdog

Type of body

Reports to

Source of funding

Comptroller and Auditor Statutory General (National Audit Office (NAO))

Parliament (Public Accounts Commission)

Office and NAO funded from consolidated fund

Parliamentary and Health Service Ombudsman

Statutory

Annually to Parliament

Salary from consolidated fund, office from independent vote

Information Commissioner

Statutory


Commissioner’s salary from consolidated fund, Office grant in aid plus fee income

Electoral Commission

Statutory

Parliament (Speaker’s Committee)

Salaries and office funded from consolidated fund

Parliamentary Standards Commissioner

Non-statutory House of Commons House of Commons (parliamentary Commission; Standards Commission resolution) and Privileges Committee

Committee on Non-statutory Cabinet Office; PM Standards in Public Life advisory NDPB

Cabinet Office vote

Civil Service Commissioners

Non-statutory Annually to Crown (PM) Cabinet Office vote (Order in evidence to PASC Council)

Public Appointments Commissioner

Non-statutory Annually to Crown (PM) Cabinet Office vote (Order in evidence to PASC Council)

Business Appointments Non-statutory Annually to PM Committee advisory NDPB


Figure 12.1 Current constitutional watchdogs Source: PASC 2007a: appendices 1 and 2 Notes: NDPB: Non-Departmental Public Body; PASC: Public Administration Select Committee

Oonagh Gay and Barry K. Winetrobe 199

House of Non-statutory Annually to PM Lords advisory Appointments NDPB Commission


Audit Commission

Statutory NDPB

Annually to Government 90% self-financing from fee income; 10% Government grants

Standards Board for England

Statutory NDPB

Annually to Secretary of Grant in aid State

Judicial Statutory Appointments NDPB Commission

Annually to Lord Chancellor

Grant in aid

Independent Adviser on Ministerial Interests

Non-statutory PM (individual appointment by PM)

Commission for Equality and Human Rights

Statutory NDPB

Annually to Secretary of Ministry of Justice vote State

Statistics Board

Statutory NonMinisterial department


Figure 12.1


Grant in aid; guaranteed five year funding

(Continued)

This is a very disparate group, often confused with one another by the public, and even by politicians, academics and specialist journalists, and this lack of understanding of their individual roles creates a major visibility issue for watchdogs. They are often lumped in by political and media critics with ‘quangos’ (and so-called ‘czars’) generally, resulting in inappropriate calls for rationalisation, more for reasons of overall economy than operational efficiency. This has been a feature of particular note in devolved Scotland, as in the Crerar Report published in September 2007 (Scottish Government 2007).

Issues and trends Like inquiries or royal commissions, watchdogs do not fit neatly within a traditional executive-legislative-judicial ‘separation-of-powers’ model, though they have complex operational and institutional relationships with, and across, these three branches. For example, though watchdogs are assumed to be independent of those they oversee, UK practice has been for them to


be ‘sponsored’ (in terms of appointments, resourcing and so on) by Government, whether directly or at arm’s length. As 21st-century constitutional reform has sought to make separation of powers more distinct (a prime example being the changing role of the Lord Chancellor), this constitutional location has potentially sensitive implications for their governance and operation. Reform of constitutional watchdogs is not just a matter of institutional design. As an indicator of the ‘health’ of contemporary governance, and of public trust in it, watchdogs are both a cause and a consequence of the state of the constitution, and how it may develop. This creates paradoxical pressures for change. Watchdogs are meant to promote public trust, but may undermine that trust by bringing political lapses to light, and by their own ad hoc creation in reaction to particular scandals, such as the creation of the Committee on Standards in Public Life (CSPL) in 1994, following weeks of ‘sleaze’ allegations against the Major Government. And, once established, it may also be difficult for politicians to rein back or abolish them or change their membership without diminishing public confidence, as in the pressures to abolish or rationalise the CSPL in 2005–2006 (see PASC 2007a for details). So, any reform of watchdog arrangements has to ensure continuing operational effectiveness (including adequate resourcing) without diminishing public confidence in them and in the areas of government which they scrutinise. Watchdogs have to be seen as a normal part of modern, accountable government, not as symbols of its failure. The watchdog phenomenon therefore is not only significant in its own right, but mirrors other trends in UK governance, some of which are addressed more fully in other chapters of this book. These include the shift away from informality and discretion – for example, patronage in public appointments, self-regulation, legal immunities and exercise of an unaccountable prerogative – towards greater formalisation of rules and legalisation of government. But there is no total acceptance of watchdogs as part of the constitutional landscape, especially by politicians. MPs have already lost status as representatives, through greater direct public consultation and public access to information which has devalued the uniqueness of Parliamentary accountability mechanisms such as committee inquires, draft legislative scrutiny and Parliamentary Questions (PQs). If independent outsiders deal with virtually all major issues of public propriety, politicians risk appearing even more powerless and pointless as representatives of the people. The political elites (for a populist view see Oborne 2007) have also reacted against the perceived ‘depoliticisation’ of constitutional matters, such as elections, which they see as being inherently ‘political’ (a concept, in this present constitutional context, that is wider than party political, to include the interests and activities of parliaments and governments – at all levels – and their officials as well as their politicians). Political responses to the abortive ‘cash for peerages’ police investigation in 2006–2007 displayed fury


at attempts by outsiders to lay bare the world of party funding. Politicians have a legitimate interest in these political activities, and thereby, by extension, in the watchdogs which supervise them. They may instinctively assume that ‘independent’ outsiders, such as the Electoral Commission or even their own Standards Commissioner cannot fully understand the political processes these institutions are charged with overseeing, and so produce inappropriate decisions, or advice. This hostility poses a difficult challenge for watchdog design and governance arrangements, at the heart of which is a delicate balance between independence and accountability. To summarise, watchdogs have taken root in the UK constitution – it is significant that much of Government’s response to the PASC report refers to consideration and reform to be taken forward as part of the much wider constitutional renewal agenda and proposed legislation (PASC 2007b) – but the political classes are uneasy about the implications of their existence and the public are only vaguely aware of their work, taking notice only when a lapse in standards is brought to light. The case study in Figure 12.2 shows how a watchdog can be subject to these conflicting pressures.

The Labour Government’s 1997 party regulation and funding agenda required an independent supervisory body to assist parties with the new regulatory regime and to provide public assurance. The initial design emphasis was an attempt to bolster the Electoral Commission’s independence from political control or direction – its non-political members would be nominated for lengthy terms, for example – but for accountability purposes there would be a committee of MPs, chaired by the Speaker, which would oversee its budget and strategic planning, based on the Public Accounts Commission/National Audit Office model. From the outset, confused accountability to Government and Parliament became a flashpoint. The Speaker’s Committee had a monthly Oral Questions slot, but lacked authority to speak for the Commission. The Commission’s remit to modernise electoral law brought it into conflict with Government initiatives, such as universal postal voting. Its regulatory role was criticised as insufficiently robust in view of the parties’ apparent flouting of the spirit of national expenditure limits through unregulated loans in the run-up to the 2005 election. Government persuaded another watchdog, the Committee on Standards in Public Life (CSPL), to act as reviewer of the Commission’s operation, and CSPL’s report in January 2007 (CSPL 2007) was strongly critical of the Commission, its role and its accountability arrangements, especially through the Speaker’s Committee. But CSPL was nervous of political appointees, recommending as a compromise appointment of four extra Electoral Commissioners with contemporary experience of politics and the political process. Parliamentary influence may have led to the Commission chairman only being offered a short reappointment in January 2007. All MPs consider themselves experts on electoral and party matters, such as finance and campaigning, and the Commission’s lack of political allies to defend its record has undermined its credibility. In hindsight, the accountability arrangements were inadequate, and the NAO/PAC model was not appropriate for such an intensely political function. Moreover, CSPL’s role in attacking the Commission, at Government instigation, illustrates the instability inherent in watchdog land.

Figure 12.2

A case study – the Electoral Commission


Drivers of change From the above, we can identify five factors for potential future change in the structure, role and operation of constitutional watchdogs: depoliticisation; proliferation; rationalisation; permanence and devolution. They cannot be regarded as an exclusive list, or even as completely discrete factors, as some of them pull in contrary and/or complementary directions. We set out below three scenarios for change, in ascending order of ‘radicality’, where these factors are in play to some degree. There are several axes at work here, which cannot be reduced to a two-dimensional snapshot. The scenarios are particularly subject to the vicissitudes of the political environment, and it is not possible at this stage to predict which factor(s) will be most influential in the future development of constitutional ‘watchdoggery’. Depoliticisation and proliferation Areas where one or both of these pressures may emerge include the following: • Gordon Brown’s early focus on public ethics and constitutional reform has already seen the new post of independent investigator of alleged breaches of the Ministerial Code as an enhanced version of the role established by Tony Blair in 2006. • The civil service provisions in the 2007–2008 draft Constitutional Reform Bill will inevitably involve further debate about the role and status of the Civil Service Commissioners and the Advisory Committee on Business Appointments. • The organisation and conduct of elections will continue to provide a source of pressure for (and against) ‘outsourcing’ difficult decisions, as can be seen from the controversy over ballot paper design in the 2007 Scottish elections. • Future general elections will provide a regular focus for parties to promise measures ensuring more ethical governance, as will the inevitable episodes of actual or alleged ‘sleaze’. • New watchdogs will begin to operate in the political domain, and their existence will intensify the debate about the nature and functions of constitutional watchdogs, especially those in politically sensitive areas of judicial appointments and human rights. • Further, House of Lords reform will focus attention on any statutory appointments body, as even a fully elected House would likely involve some residual appointment aspects. • Controversial decisions and actions of existing watchdogs – such as the two Information Commissioners on Freedom of Information (FOI) and the Electoral Commission on party funding – will generate calls for reform and restriction of their role.


• Confirmation hearings may expand beyond the initial Ombudsman and Statistics Board chair as MPs sense a new and growing parliamentary scrutiny role. This may be a double-edged sword for watchdogs, as hearings will assist with visibility, but can also become a forum for attacks on their performance and credibility. Rationalisation and permanence The years of ad hoc watchdog creation have generated a desire not only for explicit recognition of their permanence, by way of a coherent ‘system’, but also for some rationalisation, whether on general efficiency grounds or to provide a clearer route map for the public. The May 2007 PASC report recognised the need for both rationalisation and permanence: ‘The time has come to recognise that the machinery of ethical regulation is now an integral and permanent part of the constitutional landscape’ (PASC 2007a: 3). Its recommendations were an initial attempt to tidy up the ethicalregulation sector, give Parliament a more central accountability role and recognise that the watchdogs needed a more ‘independent’ sponsor to arrange their pay, budget and other governance matters (so as, for example, to minimise the scope for such issues to be used by their sponsors as a means of potential or actual influence on their operations and decisions). Its report was influenced by the operation of devolved Scotland’s ‘parliamentary commissioners’, watchdogs that had Holyrood as their sponsoring bodies (see PASC 2007a: paras 65–9; see also Figure 12.3). But not all watchdogs themselves are necessarily convinced by the argument for a more direct, uniform parliamentary role, especially in sponsorship/governance matters. They emphasise the distinctiveness of their varying roles and functions; many are content with their current sponsor, and a few are actively lobbying for a statutory foundation, or even more formal independence from Government (see Graham 2007). Some react against what they see as an inappropriate ‘lumping together’ as a distinctive category

• More attention to institutional design of watchdogs to promote independence and accountability; • New public standards commission to sponsor watchdogs with members drawn from parliament and executive; • Direction of travel towards college for Cabinet Office sponsored watchdogs; • Greater role in scrutiny of watchdogs for Parliament; • Acceptance that watchdoggery does not necessarily build trust, but their role is still essential to modern constitutional arrangements.

Figure 12.3

Ethics and standards: Key PASC recommendations

Source: PASC 2007a


of public body, especially if it is a prelude to rationalisation. A media-savvy watchdog can negatively ‘spin’ political pressure for reform, especially when trust in Government is low. UK watchdogs are sponsored by a few Whitehall departments, mainly the Ministry of Justice (MoJ) and the Cabinet Office (CO). After almost continuous internal reorganisation, these departments arguably lack enthusiasm and expertise for this role. In Scotland, where the watchdogs are sponsored by the Parliament rather than the executive, Holyrood itself had no expertise of the sponsoring role, which contributed to the controversies and difficulties that were tackled only with the Finance Committee inquiry in 2006. Even if PASC’s suggestion for a Public Standards Commission covering the CO-sponsored bodies is not adopted, the Government is likely to develop alternative proposals. The MoJ has a lukewarm relationship with the Electoral Commission and, following the critical CSPL report, has now firmly taken its policy work back in-house, leaving the Commission to concentrate on guidance and regulation. The relationship between the MoJ and the Information Commissioner is also tense, especially in relation to his requests for increased resources. Battles over financing are often hidden unless negotiations break down, but remain key for ensuring effectiveness. Yet substantial obstacles remain to rationalisation or transfer to a new parliamentary sponsorship body, in addition to possible opposition from some watchdogs themselves: • Designing a coherent system of ethical accountability is unlikely to be a policy priority for senior ministers or officials, where risks and pitfalls may outweigh any political benefits. Even if reform is initially driven from within Westminster, such as from the PASC report and any follow-up draft Bill, substantial change will require a strong degree of active executive buy-in. Add the scarcity of legislative time, subject to any innovations, such as Holyrood-style Committee Bills which may provide avenues separate from Government and its legislative programme, and the risk of being accused of a hidden anti-watchdog agenda, and it is not surprising that politicians are reluctant to enter or remain in such dangerous waters. • Not all Westminster Members and staff will welcome such an enhanced role, with few regarding this as obvious ‘core parliamentary business’. They may note the criticism faced by the Scottish Parliamentary Corporate Body when exercising a similar role. Parliamentary inertia and opaque decision-making (especially if both Houses are to be involved) are powerful constraints on change. The latest investigation of Commons management and administration has again found that the federal nature of the House’s administration and the lack of clarity over the role of members in internal governance inhibit innovation (Tebbit 2007). An executive-dominated legislature like Westminster makes it difficult


to establish a person or committee who can speak for ‘Parliament’ as an institution, and provide a clear, corporate view or leadership role necessary for an enhanced watchdog-sponsoring function (for a recent examination see Russell and Paun 2007). The devolved landscape Similar pressures are likely to be felt in Scotland, Wales and Northern Ireland (which ‘enjoys’ more than its fair share of independent watchdogs, often related to its unique political situation – for example, Parades Commission, Victims Commissioner – and has experienced many political and judicial challenges to watchdogs, and their activities) to which will be added any domestic influences and pressures within each devolved territory. Devolution is by definition a driver towards diversity and difference. For example, the coming decade or so could see amalgamations of UK watchdogs, but a proliferation of devolved watchdogs. Though, in Scotland, the immediate future under an Scottish National Party (SNP) Government, bolstered by the Crerar Report (Scottish Government 2007), is likely to see rationalisation of watchdogs within a more general ‘bonfire of the quangos’. The origination of children commissioners in Wales, the distinctive Scottish ‘parliamentary commissioner’ network and the unique watchdogs in Northern Ireland – all show a determination not simply to copy UK models. Devolved watchdogs will be just as likely to seek co-operation from each other (and from the Irish Republic) as from their Westminster/Whitehall colleagues, though relations are generally positive and co-operative.

Scenarios Introduction So, how might ethical regulation develop in the UK up to 2020? Because watchdogs operate in core constitutional terrain, any changes in ethical regulatory arrangements cannot be divorced from the more general developments outlined in this book. We have already identified the factors which result in contrary pressures on watchdogs, resulting in Sliding Doors scenarios of contrasting options. Either watchdogs will grow in number and/or power and status in the next decade, or they may be rationalised and/or reduced in significance as politicians and Parliament take back control over decisions which affect the operation of the constitution. A key variable here is the development of an independent culture in Parliament, leading to a more autonomous relationship with the executive. A strong culture of scrutiny, allied to a Parliament-led coherent rationalisation of watchdogs, could result in a new authoritative watchdog environment. Or suspicious MPs could rein


in supposedly unaccountable commissioners, in alliance with the executive smarting from unwelcome regulation. This is not an ‘either/or’ set of options. More likely is some kind of refashioning of watchdogland, without a clear sense of direction. Three scenarios are set out, reflecting differing degrees of possible change and reform.

Mini Continuation of the ad hoc and largely reactive development of the watchdog system would involve new watchdog roles or offices being created, probably by Government and often (at least initially) on a non-statutory basis. If the Brown Government delivers its ‘new politics and public trust’ agenda, watchdogs and their governance, may be an important, if largely symbolic, underpinning of that package. They may also have a role in other proposed reforms, such as the exercise of the prerogative. Levels of public trust would follow current trends, with watchdog activity having only marginal impact at particular moments of political tension. Within this mini scenario, there will be some rationalisation of UK watchdogs, such as those with public appointments remits, or with overlapping remits or those currently sponsored by the CO. If rationalisations are not achieved consensually, there could well be tensions, which are likely to become public, as watchdogs and their supporters defend the status quo, and portray rationalisation by their government sponsors as a means of neutering the watchdogs. Without such external threats, it is unlikely that the existing watchdogs will develop significantly more formal or closer co-operative or liaison arrangements, to provide a more united front to government. Governance arrangements will not change much from the present largely executive sponsorship model. As their November 2007 response to the PASC report shows, ministers still seem instinctively to regard watchdog sponsorship as essentially a government rather than a parliamentary function, and that such a role, reformed by greater transparency over funding, possible pre-appointment parliamentary scrutiny, and a change to longer nonrenewable appointments, can still provide adequate independence (PASC 2007b). However, there may be some demand within Westminster for greater involvement in scrutiny of both the watchdogs themselves and the areas of governance they patrol. In the devolved countries, a ‘mini’ approach would see each jurisdiction continue to develop its own arrangements, without more formal linkages with UK counterparts. This would apply also to any arrangement at local or regional government level. While Wales and Northern Ireland may create new watchdogs, it is possible that there may be some ‘rationalisation’, through merger or abolition, of existing ‘parliamentary commissioners’ in Scotland.


Midi A more radical scenario for UK watchdogs would see the adoption of changes based on those suggested or foreseen in the recent PASC (2007a) and Scottish Parliament Finance Committee (2006) reports. Governments may judge that voluntarily taking up the parliamentary challenge of comprehensive restructuring, rather than proposing their own changes which may be seen as yet another ad hoc reaction to events, would help to legitimise and entrench the reforms as ‘good’ and necessary in themselves. A new regime would include a more defined shift from Government to Parliament in watchdog governance arrangements through a statutory ‘Public Standards Commission’ acting at arm’s length from, but on behalf of, both Parliament and Government: substantial rationalisation of existing watchdogs, but with creation of new remits and offices as and when required according to defined criteria, and more formal links between watchdogs themselves, within some form of college. These new arrangements could be entrenched in any future written constitution or British Bill of Rights, as with the South African constitution of 1996 which made specific provisions for the existence of a series of ‘state institutions supporting democracy’. Within Parliament, more direct one-to-one links between watchdogs and their respective select committees (as with the National Audit Office (NAO) and Public Accounts Committee), and the new confirmation hearings, would enable these committees to develop new roles, for example, as ‘champions’ in both watchdogs’ operational matters and broader governance issues. There was an example of this in late 2007 over the child benefit data loss affair – which involved a dispute over responsibility between two bodies, Her Majesty’s Revenue and Customs (HMRC) and NAO – when the Public Accounts Committee Chair publicly acted as a champion of, and a conduit for the arguments of, the NAO. Such enhanced functions could compensate members for any perceived loss of traditional representative functions to these watchdogs. Such developments may bring some benefits to both watchdogs and to Parliament in the short term, but will also breed confusion and tension in the wider, interlocking relationships between watchdogs, Parliament and executive. Lack of clarity over the respective roles and responsibilities of each over governance, accountability, resources and scrutiny would result. If these difficulties became visible beyond the Whitehall/Westminster village, public trust in politicians might suffer, leading to calls for even further watchdoggery. The existence of a pro-Government parliamentary majority may lead to de facto shadowing of executive policies (over pay, staffing, relocation of offices and so on, of their public bodies), thereby undermining the benefit of any formal shift of the governance role from Whitehall to Westminster. MPs and staff will have to devote time and effort in this new role, something they may not be willing to do. This may lead to a partial offloading of


this governance burden from the Commons to the Lords, dressed up as an appropriate constitutional role for the Upper House. Tensions may also emerge between watchdogs themselves, for example: • Competition for resources: Though each watchdog may regard itself as sui generis, their sponsors (to whom they may also be accountable) may tend to lump them together as a distinct class of public bodies, whose operations and resources could be regarded in aggregate and perhaps thereby capped. • Overlapping remits among the watchdogs themselves: Some of them with broad horizontal remits may have operational jurisdiction over one or more of the others, such as being subject to audit, ombudsman investigation or FOI request. A watchdog being itself bitten may well resent it. • Overlapping operational jurisdictions: More than one watchdog may have a locus to become involved in the same public issue at the same time (see Figure 12.4). This ‘interference’ may be to the detriment of effective resolution of the issue, or breed resentments among the watchdogs involved. Depending on the exact terms of each watchdog’s constituent scheme, and the facts and law of the issue in question, resolution of any such potential overlap or interference may not be straightforward or even possible.

The 2013 UK general election outcome is extremely close. In several of the hotly contested seats, some defeated candidates and electors not only challenge these results in court, but also make FOI requests of the relevant electoral administrators, the Electoral Commission and the Ministry of Justice. The Electoral Commission uses its powers under the Fair Elections Act 2009 to seek the judicial annulment of those election results it believes were obtained by fraud, error and so on and also institutes its own investigations into several disputed contests. At this same time, several outstanding watchdog recruitment exercises in Westminster lead not to the expected appointments or routine reappointments, but to the appointment of several unexpected people, some of whom are denounced in the media as pro-Government lackeys appointed to scupper the various electoral investigations. The Commissioner for Public Appointments announces an investigation into these appointments. FOI requests into various aspects of this increasingly complex affair mount up, especially where bodies (including some watchdogs) refuse to disclose all or any of the information requested, and appeals are made to the Information Commissioners. Complaints are also made to the Parliamentary Standards Commissioner about the conduct of various members involved in the disputed appointments processes. The courts, faced not only with the direct challenges to the elections through the petitions processes, but also with a series of challenges from various quarters (including some watchdogs) to the subsequent fallout affecting various watchdogs, declare that these issues are essentially ‘political questions’ and not ones which a court could determine . . .

Figure 12.4 Fantasy or reality: One election, many watchdogs?


• Hierarchy of watchdogs: If not all watchdogs, including those beyond the constitutional ones, were brought under Westminster’s wing and accorded the ‘Officer of Parliament’ status currently granted to just a few, those bodies left outside may view themselves as ‘second class’ public bodies, denied the gold standard of institutional design, and may lobby for ‘enhanced’ status, because of the perceived divisiveness of a two-tier system. The Government’s response to the PASC report suggests a de facto recognition of an existing hierarchy, with CSPL as an overarching ‘ethical auditor’. This also demonstrates the vagaries of political reaction, and the effectiveness of watchdog ‘fightback’, given the earlier rather shaky and unpopular position of CSPL with ministers and politicians (PASC 2007b). Such tensions could undermine both the operational effectiveness of the watchdogs, and the public trust in them and in the areas of public conduct over which they operate. There may be more institutional co-operation between the watchdogs themselves, largely for defensive purposes, further exacerbating the potential for friction which, insofar as it was public, would undermine public and political confidence. Such an unstable environment could provoke unilateral ministerial reaction, to rein in both watchdogs and interference by Parliament. Some within Westminster might welcome the offloading of an undesired new burden, thereby undermining any gains achieved in earlier reforms. Depending on the future of Scotland in the UK, and practical factors such as the perceived effectiveness and governance of UK watchdogs, the governance of sub-national watchdogs may move closer to their UK equivalents. Maxi Suppose that the UK (including here, its devolved areas) was regarded as an emerging democracy, and an international governance-strengthening NonGovernmental Organisation (NGO) was asked to devise a system of ethical regulation for it. Would it regard even the PASC proposals as adequate according to standard requirements relating to independent elections, corruption, maladministration, audit and so on? In the absence of high-level external control mechanisms, such as a written constitution or a comprehensive system of administrative law, or even applicable sets of overarching principles or norms (such as the Paris Principles for independent human rights organisations), the UK arrangements for the ethical regulation of governance may seem typically pragmatic rather than principled, and so out of line with best overseas practice and norms.1 For example, though a parliamentary-based sponsoring arrangement may generally enhance most watchdogs’ independence from Government, it will not be seen as appropriate for watchdogs whose remit covers matters of direct concern to elected representatives, such as elections, appointments to the Upper House and parliamentary standards. Here, new arrangements


may need to make them independent from both Parliament and executive. In Europe certain watchdogs are considered to be more like judges and courts than officials or quangos. A prime example is the court of auditors model, common in continental constitutions. If the British constitution’s direction of travel is towards greater judicialisation, then watchdogs might become part of the quasi-judicial branch of government, perhaps affiliated in some way, especially with a written constitution, to a ‘constitutional court’. This may diminish their direct accountability, whether to Parliament or the executive, for their actions and decisions. They may, at the same time, have to develop more continental judicial characteristics, to be sufficiently proactive and inquisitorial as watchdogs. For such radical arrangements to survive, a delicate balance between the various actors has to be sustained. Tensions, even beyond those described under the ‘midi’ scenario, could undermine or stultify these relationships, as could external pressures of ‘scandals’ and other events. Governments in particular may become frustrated that these watchdogs are ‘off the leash’, capable of sniping at them and their policies and actions, but not subject to any ministerial control or restraint. Parliaments and their members and staff may have similar frustrations, especially when watchdogs cast the spotlight on them. As the watchdogs’ sponsoring body, they could rein them in, but may be cautious about so acting if it could be portrayed, by the watchdogs themselves and by the media, as an attack on their independence and role. Note, for example, how both Government and Parliament were heavily criticised in 2006–2007 for what was widely perceived as retaliatory attempts to dilute FOI. If these tensions become significant, they could lead to at least two, possibly opposite, trends. Watchdoggery could become entrenched as a central part of British governance, displacing some of the traditional accountability of government through indirect representative means via MPs, councillors and so on. Individual watchdogs could then claim and be accorded, by media and public, an exalted status – the ‘wise elders of the constitution’ – ranking above mere political actors: widely regarded as fair, impartial and trustworthy; operating outside the political fray; and ensuring that the government game is played by the rules. They could exploit this position to accrue even more proactive, independent powers of intervention in the operation of government, akin to those of the courts under judicial review. At the extreme, they could become ‘veto’ or ‘validation’ players, much as the judiciary under a written constitution, where actions of government could become regarded as merely ‘provisional’ pending possible intervention by an appropriate watchdog. In this version, the watchdog sector would become entrenched as part of the judicial or quasi-judicial machinery, distinct from, and, at least in that sense, ‘above’ both Government and Parliament, perhaps ultimately emerging as some form of ‘Council of State’ or ‘Supreme Standards Tribunal’


alongside the Supreme Court. As such it could become a new, fourth branch of government. This could then even lead to more radical developments, such as some form of public election of certain watchdogs. But all this, if it ever happens, is not for the period up to 2020. The other, opposite trend resulting from the tensions described above could be that both political actors and the media/public would increasingly view the watchdogs as another tier of interfering, intermediate institution, too often overreaching themselves by interposing themselves in the daily operation of government. If public trust continues to decline, and watchdogs become regarded as interfering busybodies, this would present a window of opportunity for them to be brought under more direct control by either Parliament or Government or both. A precedent for this scenario would be the fate of Elizabeth Filkin, who was not offered a reappointment as Parliamentary Standards Commissioner in 2001 after upsetting key politicians at Westminster (see Gay and Leopold 2004).There was also strong pressure to include politicians in the membership of the Electoral Commission, which was fought off in the CSPL (2007) review. Politicians and their officials may well conclude that watchdoggery had proved itself to be incompatible with the British way of governance, and that a return to more traditional forms of accountability through representative, indirect means is required. Viewing this latter version optimistically, it could be an opportunity for an enhanced form of representative democracy and parliamentary accountability (for example, by taking full account of trends towards more direct, popular forms of accountability to the public made viable by technology). More pessimistically, it could presage a return to a more ‘private’ form of governance, something done within the closed corridors of Whitehall and Westminster, insulated from interference by watchdogs (or even largely by courts), bolstered by a reassertion of parliamentary privilege, crown immunity and similar protections.

Wider impact The wider impact of these scenarios cannot be accurately assessed. The most significant variable in the operation of the scenarios is Westminster, and the extent to which it becomes more actively involved in the governance of watchdogs either in partnership with or partially displacing the Government. Significant adaptation to Parliament would result from the midi or maxi scenario, with the development of a new sponsoring role, including the involvement of the more independent-minded House of Lords in any new institutional structure. Legislation for cross-House working has just been enacted in the Parliamentary (Joint Departments) Act 2007. The new role will also require parliamentary staff with specialist strategic planning and audit skills, and, more problematically, MPs and Peers with a long-term interest in the problems of sponsoring watchdogs. It would also help push


the legislature towards greater institutional autonomy, though too independent a policy over ‘its’ sponsored public bodies as compared with that of the Government may bring it into conflict with the Government. Differences in pay and staffing between watchdogs sponsored by Parliament and those sponsored by Government may create some friction, but this is unlikely to be understood by the media and public. Political events sparked off by the watchdogs’ investigations may also offer MPs enhanced opportunities to scrutinise and influence the internal workings of Government, including ministers, officials, special advisers and public appointments. If serious issues are identified and not dealt with, there will be pressure for Parliament to enlarge its oversight role, and adroit parliamentarians may take advantage. Allied to the likely expansion of confirmation hearings, the overall, sustained oversight of Government by Parliament and ‘their’ watchdogs may be raised to new levels. This may provoke a reaction from Government and provoke some debate about the quantity versus the quality of scrutiny by Parliament.

Conclusion As with all constitutional speculations in this book, no firm predictions about the direction and rate of travel can be made for the near term. This uncertainty applies particularly to the area of constitutional watchdogs, because their fortunes are contingent on external events and on the wider constitutional changes in the areas in which they operate. Subject to that, we can suggest that various trends, often overlapping, sometimes contradictory, identified elsewhere in this book will continue to have impacts on the watchdog environment: • Demise of self-regulation: For good or ill, self-regulation in government and politics – even where it is underpinned, as in Westminster, by ancient law and practice – may no longer be acceptable to the general public. Virtually all political actors and offices now require some degree of independent oversight. • Legalisation: This can be loosely described as a shift from a largely political constitution to an increasingly legal one, through formal law, subject to judicial review. • Attention to resourcing: Watchdogs require some guarantee of stable and ‘protected’ funding to become a permanent part of the constitution; this understanding is gaining ground in Government, as illustrated by the five-year settlement given to the Statistics Board in 2007 (HC Debs 2006– 2007). • Independence: The legal and constitutional principle of independence increasingly means that those with ‘watchdog’ roles have to be, and are seen to be, effectively independent of those they oversee or investigate.


This is not just a matter of making them independent of Government, if that shift simply creates a new ‘dependency relationship’, for example, with Parliament. • Accountability: The political and increasingly legal notion of accountability is now expected to apply, to a greater or lesser degree, not just to political actors and their decisions and conduct but also to those who have a ‘watchdog’ role over them. • Reaction against ‘depoliticisation’: This more recent trend among political actors, especially those subject to watchdog scrutiny, is a factor which is likely to grow, and which may ‘interfere’ with the largely contrary trends previously identified. • Greater responsiveness to public opinion: Watchdogs may not survive if they are not aware of the wider concerns of informed public opinion, but must not be drawn into immediate public alarms, following scandals.

As we have suggested, several of these trends are contradictory, and this, added into the mix of events and other external factors, makes the watchdog segment of the constitution especially difficult to predict. Without a programme of reform, the best that can be hoped for is continued ad hocery; buffeting by external pressures; struggles between the watchdogs, those subject to them and the potential intrusion of the courts – the prospect of litigation about appointments to the House of Lords (especially if that were separated from any honours system) or to the judiciary would be interesting, to say the least – and the likelihood of sudden shifts of policy and practice. It is better for the long-term health of British government that a comprehensive, planned system is put in place, to be called upon as required, rather than a continuation of the ad hoc, reactive practice we have seen in the last 20 years. The genie of the independent ethical regulator or constitutional watchdog has well and truly been let out of the bottle. It cannot be put back in. Watchdogs are here to stay. The issue, therefore, is how to accommodate them into the developing British governance system (which seems to include greater direct public engagement) in a coherent, efficient and generally acceptable way. We have tried to illustrate various directions of travel, and speculate on where they may ultimately lead. A positive view would see them inhabit constitutional terrain that enables them to complement, rather than clash with or displace, more traditional ‘representative’ and democratic forms of accountability and scrutiny of Government. Constructive relationships will minimise the impact on watchdogs even in a climate of greater judicialisation and will enhance public trust in those areas. A more pessimistic view would risk their becoming the scapegoats for any perceived failings or scandals in the areas of governance they oversee. Such responsibility displacement would erode, and probably destroy, the


integrity of the watchdog system and even the principle of the independent watchdog. Whether this would lead to a reassertion of more traditional ‘watchdoggery’ through parliaments; greater reliance on judicial methods of redress and control of government; or even direct public involvement ensuring accountability in the proper conduct of government (or some mix of these three) is probably the key question up to 2020.

Notes 1. For background, see Joint Committee on Human Rights (2002 and 2003) and ‘Paris Principles’ (1993).

13 Media Pressures on Politics Peter Riddell

Representative democracy is now under pressure from direct democracy, at the same time as the conventional broadcast and print media are being challenged by the internet and other forms of new media. The two changes are directly linked and will affect how political issues are debated and how decision-makers are held accountable. They could have as profound an impact as the century-long widening of the franchise and the spread of television to virtually all households in the 1950s and 1960s. We are now on the cusp of a series of changes which could range from a modification of the familiar model to fragmentation of the media and the party system, as discussed in the scenarios later in this chapter.

Drivers of change The traditional model was essentially an elite one – centralised, regulated and dominated by no more than a dozen London-based media outlets closely interacting with a Westminster-centred political world. It was a world of high rather than mass politics, focusing on the actions and ambitions of political actors in Parliament. The term media oversimplifies a very diverse, and highly competitive, group of newspapers and broadcasters. By conventional or mainstream media, I mean the main nationally available daily and Sunday newspapers and the main terrestrial broadcasters, BBC and ITV. If anything, this model became more dominant during the first three-quarters of the 20th century. The creation and growth of the BBC, first in radio during the 1920s and then gradually after 1945 in television, rested on a national, London-based structure, the voice of Britain. The BBC’s regions were subsidiary. The very notion of a received BBC pronunciation reinforced this London-centric, establishment view. And while there were vibrant regional ITV companies, such as the Manchester-based Granada, from the 1950s onwards, their regional flavour lay more in drama and light entertainment than in news and current affairs. Over the decades, even this distinctiveness disappeared. 215


Political power was increasingly centralised in Whitehall and the role and discretion of local authorities were reduced and strictly limited by national directives and edicts. At the same time, the standing and circulations of many of the previously dominant regional newspapers declined. Papers such as the Birmingham Post, the Liverpool Daily Post and Yorkshire Post have retained a local influence, but much less than in the past as they have lost sales and their editorial staffs have been cut back. They no longer have any national weight. This shift was underlined by the decision of the then Manchester Guardian to shift its head office to London in the 1960s, to drop Manchester from its title and, in time, to sever most of its links with its city of origin. The London-based media have grown more powerful along with central government. This pattern was unlike in many other countries, particularly those with a federal structure, such as the United States and Germany, where power has always been decentralised and there have also been vibrant local and regional media outlets. In television also, locally generated news has increasingly squeezed out national news from New York and Washington, in direct contrast to the trend in Britain. Similarly, in Australia, the Australian, the only really national newspaper, competes with, but does not overshadow, powerful papers in each state such as the Sydney Morning Herald and the Melbourne Age. The main characteristic of this traditional model was the degree of closeness between the national media – proprietors, editors and journalists – and leading politicians and civil servants. They shared assumptions about what was important, which defined how politics was reported. This was exemplified by the lobby system, the often-misunderstood arrangements which both controlled the number of journalists allowed access to the members’ lobby and adjacent parts of the Palace of Westminster, and organised twice-daily briefings by the Prime Minister’s spokesman. Until the early 1990s, these briefings were entirely unattributable, at least in theory: that is, the source of any information was disguised under some circumlocutions such as ‘it is understood’ or the ‘authorities’. So the conversation between the political and media worlds was closely interlinked. This did not prevent criticism: far from it. In many ways, the media aped the adversarial style of Westminster politics. But the agenda was narrow. Politicians and the Westminster media were slow to catch on to and discuss new developments, such as AIDS in the 1980s or green issues and climate change from the 1990s onwards. Not only was local government virtually ignored in the national press, but there was virtually no coverage of the debates in Scotland which led to the Constitutional Convention of the late 1980s. This traditional model has broken down in two stages – both related to the move from a centrally regulated system, particularly in broadcasting, to a much greater degree of deregulation, and consequent fragmentation. First, national newspapers and broadcasters are no longer so dominant. Second,

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and partly related, the internet in its various forms and political blogging has rapidly emerged as alternative sources of news and debate. We are so used to a newspaper-dominated culture that the changes are startling. They have profoundly affected the way that politics is debated and politicians are held to account. In the early 1950s, national newspapers had a combined daily circulation of more than 16.5 million, while the BBC was the sole broadcaster, both on radio and on the one television channel. The BBC’s monopoly was then challenged by ITV. But the broad picture did not change until the late 1980s when 24-hour news arrived in the form of what eventually became Sky News. The spread of cable and satellite broadcasting, as well as flexible viewing via video, meant that the share of the terrestrial channels (BBC 1 and 2, ITV, and Channel 4) fell from 100 per cent in the late 1980s to less than 75 per cent by the middle of the first decade of the 21st century. In the early 1980s, before the arrival of Channel 4, there were just three stations broadcasting in the UK; now there are hundreds. This fragmentation of broadcasting has meant that the audience for the main BBC and ITV news bulletins has halved on average from the 8–10 million of its peak in the 1960s and 1970s. Even as recently as 1995, more than 200 television shows had audiences of over 15 million; today, there are almost none on a regular basis. This has had a profound effect on the political debate. From the 1950s until the 1970s, a substantial proportion of the electorate viewed the same television news bulletins each evening and therefore was influenced in similar ways. But, now, voters view, if they view at all, a wide range of programmes and lack that common experience. There is no longer any nationally shared conversation on politics or anything else, except on rare occasions of disaster or some highly unusual event. That means it is much harder for politicians to get their messages across. This change in television viewing has been matched by a big drop in newspaper readership. This decline began to accelerate from the mid-to-late 1990s, so that by autumn 2007, total daily sales of national newspapers were roughly 11 million, and still falling, a decline of a third since the 1950s. However, the decline has been much faster among the red-top tabloids, and less at the top end of the market (now also partly tabloid). Moreover, as discussed later on, the more up-market papers have also been the ones who have most successfully exploited new media. The decline in both the sales of newspapers and the relative share of the main national broadcasters has been linked to changes in their approach to covering politics. Instead of a few news bulletins each day, there is now 24-hour news, notably in the UK on Sky News and on BBC News 24. The viewing figures for both are relatively low by comparison with light entertainment or sports channels, but they have become central to the lives of politicians and journalists. Every ministerial and newspaper office has a television permanently switched on to one of the news channels (though usually muted) in case something happens, and there is a flash of ‘breaking


news’ across the bottom of the screen. If there is a new development, there is pressure for an instant response. Every media adviser incants the need to be in charge of the news cycle, to ensure no charge – true, false or exaggerated – gets a chance to develop, and be accepted, without being rebutted as quickly as possible. This has narrowed the room for manoeuvre for politicians and has altered the political space. It has also shifted political accountability even more towards the media. Media executives have been increasingly concerned by the need to attract new and younger readers and viewers to retain market share. There is nothing, of course, new about commercial pressures in the media business, but they have become more acute. So, reflecting the market research on which they increasingly rely, editors have believed that readers are less interested in political news, particularly on what is said on the floor of the House of Commons. A health or consumer interest story is usually likely to trump a political one on the front page of the majority of daily papers nowadays. The Commons chamber itself has become less and less the centre of political debate as ministers, opposition spokesmen and leading backbenchers were far keener for a slot on BBC Radio 4’s Today programme or BBC2’s Newsnight programme. Newspapers followed suit, finally abandoning their gallery coverage of proceedings in the Commons and Lords in the late 1980s and 1990s. An important debate, or exchange at Prime Minister’s questions, was far more likely to be covered in a parliamentary sketch, a humorous colour piece by a feature writer, than in a traditional semi-verbatim gallery story. It was not just commercial pressures. The media has also been following a shift of power away from Westminster, not just to the broadcasting studios but also to European institutions (themselves poorly covered), to the judiciary, to devolved legislatures and assemblies, and to semi-independent regulators (as discussed in Riddell 2000). The picture is not entirely negative: the downgrading of Westminster-based political coverage has been matched by an increase in specialist reporting by non-Westminster-based journalists on home affairs, education, health, defence and so on. The style of news reporting has also changed. It has become more personality- and scandal-driven. Process, procedure and policy get less attention. The big story of the day or week may be better covered than in the past, with more vivid reporting and deeper analysis. But there is less followup, and the second- or third-rank story often disappears from sight. These trends have been associated with a more adversarial, cynical attitude, seldom of an overtly partisan kind but rather a populist anti-politician kind. Consequently, as critics like longstanding journalist John Lloyd (2004) have argued, the media are no longer functioning as an inquiring check on the excesses of the political class, but have become, instead, an alternative establishment, dedicated to a theatrical distrust of politicians. This case was forcefully made by Tony Blair in one of his valedictory lectures as Prime Minister, delivered on 12 June 2007, a fortnight before he left Downing

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1. ‘Scandal or controversy beats ordinary reporting hands down. News is rarely news unless it generates heat as much as or more than light’; 2. ‘Attacking motive is far more potent than attacking judgment. It is not enough for someone to make an error, it has to be venal, conspiratorial’; 3. ‘The fear of missing out means that today’s media, more than ever before, hunts in a pack. In these modes it is like a feral beast, just tearing people and reputations to bits, but no one dares miss out’; 4. ‘Rather than just report news, even if sensational or controversial, the new technique is commentary on the news being as, if not more, important than the news itself’; 5. ‘The confusion of news and commentary. Comment is a perfectly respectable part of journalism, but it is supposed to be separate. Opinion and fact should be clearly divisible’.

Figure 13.1

Blair’s five problems with the media

Source: Blair (2007)

Street. In decrying what he called ‘impact’ – the desire to gain attention in face of competitive pressures – Mr Blair highlighted five problems with the media (see Figure 13.1). Mr Blair (2007) argued that ‘the final consequence of all this is that it is rare today to find balance in the media. Things, people, issues, stories, are all black and white. Life’s usual greys are almost entirely absent’. This lecture predictably provoked an intense controversy. Some argued that a vibrant, aggressive media was the necessary price for holding the Government to account; others sympathised with many of Mr Blair’s charges but felt, as he partially admitted, that he and Alastair Campbell, his long-serving press spokesman, were themselves responsible for encouraging some of the abuses. They had themselves been obsessed with ‘impact’, trying to dominate the media agenda and evading attempts to hold them to account. There is always a danger of ‘golden-ageism’: a belief that standards were high in the past and have only recently deteriorated. But Mr Blair’s broader points have considerable force. The pressures, not least of time, on politicians have increased, affecting the way decisions are taken. The other main driver for change is the rise of the new media. This started with the arrival of satellite and cable broadcasting at the end of the 1980s, but now encompasses the proliferation of internet outlets, political blogging, text messaging and so on (see Figure 13.2). The scale of change is hard to comprehend for anyone brought up with the traditional media. Guardian Unlimited, the most popular newspaper-based website in Britain, was the first to attract more than 20 million unique users in a month, with 20.5 million in June 2008, a rise of nearly 4 million in a year. Telegraph.co.uk was not far behind at 19.7 million, an increase of nearly 180 per cent in a year. Times Online registered 16.4 million unique users, a 70 per cent rise in a year. This


Some examples mentioned in this chapter: • • • • • • • • • • • • • • • • • • • •

Guardian Unlimited: http://www.guardian.co.uk/ Times Online: http://www.timesonline.co.uk The Sun: http://www.thesun.co.uk/ The Mail: http://www.dailymail.co.uk Telegraph: http://www.telegraph.co.uk/ Conservativehome: http://conservativehome.blogs.com/ Iain Dale’s Diary: http://iaindale.blogspot.com/ Compass: http://www.compassonline.org.uk/ Guido Fawkes: http://www.order-order.com/ UK Polling Report: http://ukpollingreport.co.uk/blog/ Political Betting: http://politicalbetting.com/ Theyworkforyou: http://theyworkforyou.com Revolts: http://www.revolts.co.uk/ 10 Downing Street e-petitions: http://petitions.pm.gov.uk/ ‘The Red Box’, Sam Coate’s blog: http://timesonline.typepad.com/politics/ The Times Comment Central: http://www.timesonline.typepad.com/comment/ The Spectator Coffee House: http://www.spectator.co.uk/coffeehouse/ Nick Robinson’s BBC blog: http://www.bbc.co.uk/blogs/nickrobinson/ Ben Brogan’s Daily Mail blog: http://broganblog.dailymail.co.uk/ OurKingdom: http://ourkingdom.opendemocracy.net/

Figure 13.2 Politics and the new media

was just ahead of Mail Online on 16 million. These sites combined both daily and Sunday titles in the internet version. Sun Online was on 15.5 million, up 72 per cent in a year. Many of these users did not have easy, or on-the-day, access to the paper version of these title. In several cases, well over half the users of these sites came from outside the UK. These figures are from the Audit Bureau of Circulation Electronic. More than 70 million blogs exist worldwide and internet advertising has overtaken newspaper adverts. Moreover, younger people are increasingly turning to the internet and online sites as their main source of news rather than the conventional media of newspapers and terrestrial broadcasters. Political blogging sites now compete with newspapers to ‘break’ new stories, generally personality-driven and scandal stories rather then new policy or international developments, which the blogging sites do not have the resources to cover. But some of the sites – such as conservativehome or Iain Dale’s Diary among committed Conservative ones – provide fuller and more detailed coverage of both new policy developments and candidate selections than any newspaper any longer does. The online political debate has so far been weaker on the Labour side, though the left-wing Compass site has been making a growing impact. While these sites have become essential reading, they are unashamedly committed and partisan. Moreover, even the peak

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number of unique users of a popular site such as conservativehome has been no more than a few hundred thousand a month, a fraction of the number of users of the newspaper sites. The vices and virtues of political blogging sites are closely intertwined. These sites are easy to set up, with none of the start-up costs or barriers to entry of the conventional or mainstream media. They are inherently democratic in that not only can one be established cheaply, but anyone with internet access can contribute to their debates. So they are the antithesis of the elitist establishment media. Their individuality is their appeal. But this unchecked spontaneity – the lack of discipline and constraint – is also their central weakness. Some sites, such as Guido Fawkes, the cover name for Paul Staines, a libertarian with a right-wing Conservative background, disdain any interest in policy and are deliberately anarchistic and muck-racking. Moreover, the comments made on blogging sites after a report often descend into partisan, and even paranoid, abuse, the spreading of ill-informed assertions and ignorant prejudices. This is made more possible by the anonymity of a majority of the contributors, creating an impression of narrow political obsessives letting off stream in an irresponsible manner, a parody of pub gossip. There is often only the most rudimentary mediating or editing function, apart from blocking out the most obviously defamatory comments. However, the existence, and rapid growth, of these sites has broadened the political debate, if only rarely enriched its quality or depth. A new layer of accountability has been created, supplementing rather than replacing the mainstream media. Politicians have another group of commentators watching their actions and words, often instantly and over a much wider range than a newspaper can manage. Thus obscure comments and announcements, which would nowadays be ignored by most papers, are picked up, and analysed, by bloggers. Newspapers themselves are also being held to account by blogging sites. For instance, every newspaper story about an opinion poll is now analysed in detail by UK Polling Report and Political Betting. They provide lengthy analyses, an unquestionable gain in public discussion of polls. All columns and commentaries are put online so that readers can give their reactions. The voting records and levels of activity of MPs and peers are now monitored on a number of sites such as TheyWorkForYou. While useful in providing immediately accessible information about the activities and voting records of an MP or peer, such sites can be too mechanistic. This has encouraged MPs to intervene more often in debates to keep their ‘score up’. Since an intervention of 20 or 30 seconds is counted the same as a speech of the same number of minutes, a misleading impression can be created. Moreover, such sites cannot measure the activities of MPs and peers behind the scenes, either on behalf of their constituents or in select committees. Political scientists have on the whole been slow to develop online sites either to communicate their work or to stimulate debates. Explaining their


work to a wider audience is seen as low priority compared with publishing in academic journals, under the criteria used in the Research Assessment Exercise (RAE) assessments and by most grant-giving bodies. This is a big missed opportunity to bridge the worlds of academic political science and public debate. Rare exceptions such as the Revolts website run by Professor Philip Cowley on rebellions in parliament and associated issues show the potential for marrying the internet/blogging and academic research. The new media have changed the ways that politicians and voters talk to each other. At one level, there has been a big expansion in e-government so that users of services can go online to use them, not just obtaining information but, for instance, declaring earnings and paying income tax. At another level, politicians and parties have gradually realised the potential in direct communication with the public via the internet, bypassing what they see as the distorting, and often partisan, lens of the conventional media. So at the 2005 general election, the main parties all expanded their internet operations, sending messages via mobile texting. While this activity attracted considerable attention on the internet itself, and in some newspapers, Dennis Kavanagh and David Butler (2005: 173) concluded that it certainly was not an internet election. Only 8 per cent of the public claimed to have gained a ‘lot’ or ‘some’ news and information about the election from the internet, as against 72 per cent for television and 48 per cent for newspapers. The parties all maintained their own sites, and there was some blogging from independent commentators and about 50 candidates. The parties used their private intranets to contact candidates. Kavanagh and Butler quote one Labour insider as saying: ‘[w]e don’t reach the mass public through the internet but it does allow us to promote the three Ms: to spread our Message to our own people, to Mobilise them and to get Money out of them’. In 2005, therefore, the internet was still essentially for enthusiasts and activists. But that is certain to be very different in future elections as the number and reach of blogging sites have increased enormously. In between elections, the Government is becoming increasingly active in using the new media, not just in putting out its own message but also in encouraging increased direct participation by voters. These tentative experiments with direct democracy have had mixed results. In November 2006, the Government decided to allow direct e-petitioning on the 10 Downing Street website, in collaboration with Tom Steinberg of mySociety, an organisation which seeks to encourage democratic engagement. This led to a proliferation of petitions: by the middle of 2007, well over 22,000 had been set up (of which nearly half were rejected outright for failing to meet the criteria by having a party political content, being offensive, being obviously jokes or being duplicates of existing petitions). They attracted a total of more than 4.4 million signatures from over 3.2 million different email addresses. There was considerable publicity about a petition calling for the scrapping of the proposed vehicle tracking and road pricing policy

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where support expanded rapidly in a few days and weeks, encouraged by the Daily Mail and other papers. But this petition underlined the drawbacks of the petition system. The Government promised that properly worded petitions would receive a ministerial response. But, otherwise, petitions went nowhere, unlike the position in the Scottish Parliament where there are procedures for submissions to be filtered by a petitions committee and, if found suitable, allocated to a relevant specialist committee. But, in the Downing Street case, all the petitioners get is a government response of varying length. There has been no scope for further debate; so dissatisfaction with the Downing Street site fuelled calls for the House of Commons to adopt a variant of the Scottish procedures. The Brown Government promised to support the introduction of an e-petitions system in the House of Commons (Leader of the House of Commons 2007a). Following reports by the Procedure Committee (2007 and 2008), Harriet Harman, then Leader of the Commons (2008), endorsed a gradual and cautious approach which would take several years to introduce. Within Parliament itself, the website has been substantially improved to make it more user-friendly and less like an online version of Hansard and committee reports. (The number of visitors to the site is far, far more than the sales of the printed Hansard.) There are also live feeds of proceedings in both chambers and in some committee meetings, as well as explanations of what MPs do and how they can be contacted. In addition, a number of select committees and what are now called public bill committees considering legislation – previously standing committees – have undertaken consultations via the internet, seeking the views of the public generally and of affected interest groups. These changes are altering the way politics is conducted. The door to the secret garden has been opened in stages: first by sound-broadcasting of the Commons in 1978; then by the arrival of television cameras in 1989; and, in Whitehall, by the various open government initiatives of the 1990s followed by the Freedom of Information Act (FOIA) (see Chapter 11). But the arrival and expansion of the internet could be more important than all in changing the way democracy operates. The question has increasingly become how to blend representative democracy with direct, participatory methods.

Main constraints on change The representative system is well-entrenched. Britain is not about to switch over to a Swiss model of plebiscitary democracy or even the multitude of ballots at election time in many states of the USA. The ideas put forward in February 2006 by the report of the Power Inquiry (2006) for direct initiation of legislation by public petition found little support at Westminster and among established parties. Governments are very reluctant to surrender the right of initiation of bills, though, in launching his Governance of Britain


green paper on 3 July 2007, Mr Brown was sympathetic to the suggestions that petitions which received a certain level of support should be debated in the Commons. This view had previously been urged by David Cameron, the Leader of the Conservative Opposition. The green paper included a number of proposals for wider public consultation and debate, including citizens’ juries and other deliberative mechanisms. However, ministers drew a clear distinction between consultation and decision-making: however broad and participatory the former, the final say will lie with representatives in Parliament. This debate has been muddled not only by a newfound enthusiasm by Mr Brown and his close allies for participatory methods to increase public engagement, but also by the still uncertain position of the referendum in British politics. In many respects, the most potent appeal to involve the ‘people’ is not over innovative forms of direct democracy but over demands for a referendum on Europe. There is no agreement on when a referendum should be held. Britain has only had one nationwide referendum, in 1975, on whether to remain in the then European Community, but, just as with subsequent pledges to hold one, the decision was determined by political circumstance and expediency, not by clear-cut principles or a constitutional convention. However, during the debates on the treaty, notably the exchanges in the Commons on 22 October 2007, both Mr Brown and Mr Cameron offered at least the embryos of new conventions to defend their positions. Mr Brown (2007c) argued that there should have been a referendum on a major constitutional change such as entry into the euro or the original EU constitution, while Mr Cameron (2007d) maintained that there should be one whenever powers were transferred away from Parliament. A related constraint is the continued dominance of the three main political parties at a national level. Whether in government or in opposition, they have been reluctant to surrender their power despite falling membership, now in total equivalent to less than 2 per cent of the electorate. A recurrent theme of both the reports on party funding by Sir Hayden Phillips and the Brown Government’s own constitutional proposals has been a desire to strengthen parties – by making them more financially viable and better able to broaden their public support (see Chapter 15). The continuing monopoly of the main existing parties over the formation and membership of governments restricts the scope for direct democracy. Implicit in the analysis of the Power Inquiry was a challenge to the existing party system and a desire to encourage the formation of new parties. That, in turn, ties in with the possible adoption of a proportional system of election for Westminster. At present, this is only advocated by the Liberal Democrats among the main parties, apart from some interest in the non-proportional, alternative vote (AV) by some members of the Labour leadership. A switch to any form of PR would probably lead to the creation of more parties and, as the Power report wants, a pattern of negotiated, coalition politics, very

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different from the majoritarian style with which we are familiar at Westminster (see Chapters 14 and 16). But, despite weak levels of membership and controversies over methods of fund-raising, the main parties remain wellentrenched and resistant both to new competitors and to changes in the method of electing MPs. Similarly, in the media world, the mainstream newspapers and broadcasters remain the largest single influences, despite the growth of the new media. Indeed, the most successful websites supplying political news are those run by these mainstream organisations, notably, of course, the BBC, but also the Guardian, Times and so on. These still have a far greater reach than any of the new political blogging sites, however much the latter are enjoyed by political activists and enthusiasts. Indeed, many of the leading bloggers spend much of their time commenting on, and responding to, stories in that morning’s newspapers or a television news report. Conservativehome provides a concise summary of newspaper reports, mainly, but not exclusively, about the Conservative Party.

Likely future changes Just as the mainstream media are having to come to terms with, and control, the new media, so the political parties, and the representative system, will have to adjust to a world in which they communicate with supporters and voters in different ways. These worlds are no longer elitist and deferential, but more populist and discriminating. On the media side, most leading mainstream groups will have to focus on their brand, rather than the means of communication, which will become varied and diverse. Thus there will be a BBC brand or a Times brand, offering a wide mixture of products which consumers can access in different ways – by viewing a programme or buying a paper as now, or by a text message or online, or via an iPod. At one extreme there may even be paperless papers, especially in places with very high internet use. More likely is a change in balance between the previously dominant paper version and the increasingly important online one. However, the means will vary depending on the preferences of the customer. People may go online at any time of day to see the brand’s web pages and get an up-to-date report. Alternatively, they may arrange to get a text message on an important development in an area where they have previously said they are interested. Or, in the case of broadcasters, listeners can download a programme or report, to listen to later. The way in which news is delivered, and received, will become secondary. Of course, this means readers/viewers can choose what news they want rather than having to accept as a package what the newspaper or broadcaster offers them. They can ignore political news if they want. The challenge will be to ensure that the quality of the brand is the same across the various outlets; otherwise, of course, the reputation of the brand will suffer.


At the same time as mainstream media organisations try to preserve competitiveness by being active in the world of new media, blogging sites are likely to proliferate to challenge this dominance. The distinction between the two is anyway likely to become increasingly blurred, as mainstream groups offer chatty personalised blogs like Comment Central on the Times or the Spectator Coffee House, or the individual blogs of some journalists such as Nick Robinson of the BBC or Ben Brogan of the Daily Mail. The success of several political sites in a short period is likely to lead to not only new competitors – all of which can be set up cheaply – but also of greater depth and sophistication than existing ones. They are likely to develop from reporting news to moderating debates and running features, as some already are. For instance, OurKingdom has set itself up as a forum for discussion of constitutional reform. Voluntary bodies and pressure groups are also likely to get into this area. Not only is the arena for debate likely to broaden and fragment, but the way in which decisions are taken will change. Increasingly, groups seeking change will use the new media to campaign via e-petitions. As mentioned above, both Gordon Brown and David Cameron have talked sympathetically of allowing debates in the Commons provided a petition obtains a certain level of support. Campaigners for direct democracy are likely to want to go further and seek a popular right to initiate legislation and more frequent use of ballot initiatives. Government is increasingly likely to use the internet to communicate directly with users of services, though there is likely to remain a significant minority of non-users of internet among the most vulnerable needing state help, notably among the poor and the old. Departments are also likely to use both citizens’ juries and e-democracy to consult on new policies, not to take decisions, as some advocates of direct democracy wish, but to take soundings on the public’s view of tricky policy choices. Political parties will use the same means, both to communicate with their own members and supporters and to campaign to specific target groups of voters. The internet allows parties to segment the population into small groups and to tailor their messages accordingly. Again, the implication is fragmentation, not cohesion.

Matrix and four scenarios The following scenarios – as set out in Figure 13.3 – are intended to illustrate possibilities over the next ten years or so. They turn on the twin themes of the chapter: centralised/old media versus fragmented/new media (on the east–west axis); and representative versus direct democracy (on the north– south axis). Unlike some other chapters, there is bound to be greater fluidity since so much depends on the pace of technological advance rather than specific political developments.

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Representative democracy Traditional Westminster

Parliament Adapts

A B Centralised/ old Media

Fragmented/ new Media

Baronial Politics

Cyber Politics

C Direct democracy Figure 13.3

Democracy and media: Four-way matrix

Traditional Westminster The current representative system, centred on the Westminster Parliament, remains broadly as it is now, reinforced by a centralised media structure heavily dominated by a few national organisations. This assumes that demands for wholesale constitutional reform and a plebiscitary approach fail. There is no change to the present majoritarian system at Westminster, buttressed by first-past-the-post-elections (FPTP). Power, both media and political, remains concentrated in London. On this model, the elite retain control over the terms of the debate, and there is still a national conversation about politics. This scenario looked plausible until the mid-1990s, but now looks dated. The dominance of Westminster has been undermined by devolution and other constitutional changes towards sharing of power. At the same time, government has become more interested in direct democracy via the much greater use of citizens’ juries and other participatory forums. The traditional media have also been challenged by the growth of the new media, multichannel television and the internet. So, in practice, there has already been a movement, both eastwards to the new media and southwards to direct democracy. Parliament Adapts This is the classic evolutionary model, in which the representative system adapts to changes in the media and methods of communication. Both


the constitutional forms and much of the practice remain broadly as now. But there is more consultation via the internet by Government, by MPs individually and by Parliament institutionally (notably via select committees). Parties use the internet and blogging to try and reach voters, especially those under 35 whose turnout at elections is low and who prefer the new to the conventional media. Government bypasses the conventional media to reach customer and client groups, such as pensioners and other benefit recipients. The main players successfully adapt the existing representative system to use the techniques of the new media and direct democracy, but are not overwhelmed by them. That requires flexibility and imagination on the part of Government and the main parties. It also assumes that the demands for wholesale constitutional reform and a plebiscitary system fail because they are too diffuse and ill-thought out. The main parties will only dabble in direct democracy and will be reluctant to surrender the initiative and control. The representative system will remain at the centre. Voters and campaign groups will try and influence elected representatives, but not themselves determine policy decisions, except on the still very rare occasions when a referendum is held. The political debate retains a broad coherence because the mainstream media have kept a dominant position by blending their traditional means of communication with the internet. Their online and blogging sites remain the most widely seen rather than those of the new competitors from outside the mainstream media. Thus, there is still a national conversation about politics, even though much more restricted than in the past. The plausibility of this scenario rests on an evolutionary view of media and political developments: the close links between the representative system and the mainstream media continue as both adapt but do not disappear. Baronial Politics The traditional old media retain their dominance but representative democracy is significantly weakened, as power moves away from Westminster. The national party structure is also weakened, especially if the voting system is changed for the Commons. Parties will have to negotiate to form coalitions rather than achieve single-party power. They will have to reconcile the differing views not only of the constituent groups within parties but also of a wide variety of campaigning groups operating through e-democracy. Referendums and plebiscites are used more often to resolve policy questions, on the Californian and Swiss models. The imbalance between the fragmentation of political power and a more traditional concentration of media power substantially alters politics in favour of the owners of traditional media organisations. Not only leaders of political parties but also single-issue campaigners compete for the support of the controllers of the media. Those in charge of the main media

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outlets become like medieval barons, or the kingmakers in the Wars of the Roses, not themselves taking the crown, but influencing who will. They will seek to determine the outcome of referendums. This is likely to strengthen euro-scepticism and an authoritarian/populist approach to issues like immigration and social inequality. The media will become more influential power players. There are hints of this model at present in the perceived, if not actual, power of some media proprietors and editors, such as Rupert Murdoch’s Sun in pressing for a referendum on EU issues. But, in the long term, a significant shift away from representative democracy towards direct democracy is likely to be closely related to changes in the media. Indeed, changes so far have challenged the dominance of the old media (even though many of the most successful websites are run by traditional groups). So, at most, this could be a transitional phase towards Cyber Politics. Cyber Politics Both political and media power are fragmented. Representative democracy is largely replaced by a plebiscitary system. Voters can not only initiate but also pass legislation through petitions and ballots conducted entirely on the internet. Power lies with those groups best able to raise support on the internet. At the same time, the influence of the mainstream media has been eclipsed by the rise of a wider variety of online and blogging sites, often with a strongly populist, anti-establishment stance. The party system fractures and fragments under the pressure of such a populist/media revolt and wholesale constitutional reform. There are a large number of parties, and politics becomes increasingly candidate-based. Individual aspirants for office use the internet to attract money and support. They have a loyal fan base. Groups of candidates/representatives ally themselves with the leading figure that has the greatest pulling power. This is akin to the 18th-century politics of patrons and factions, though based on cyber clout rather than inheritance or land. Politics is run entirely through negotiation between these changing groups and single-interest organisations that can mobilise support through e-democracy. Governments and elected politicians are forced on to the defensive and become more reactive, trying to balance popular demands expressed through ballots and e-petitions. Success goes to strong personalities. The celebrity factor becomes crucial in attracting interest in such a fragmented world. As with the baronial model, this fragmentation creates the potential for well-financed individuals and pressures groups to try and seize the initiative by urging and campaigning for referendums and ballot initiatives. This might apply not just on Europe but also, say, on bringing in tight immigration controls. Thus, while, in theory, Cyber Politics looks completely democratic because of the multiplicity of media outlets, there is potential for the already powerful and wealthy to dominate debate.


Conclusions If up to the mid-1990s, we were at point A on the matrix, we are now at point B. While Parliament Adapts still looks the most probable outcome over the next five to ten years, there is at least a strong possibility of a movement in the direction of point C. These possibilities have a potentially profound impact on the way politics is conducted: the existence of a national conversation about politics. They also have direct implications for familiar patterns of political behaviour: the relation of MPs and Government to voters and members of the public; the structure of parties; and the way money is raised to pay for politics. Above all, these developments challenge long-established ideas about representation, legitimacy and popular participation. The implications are not all negative. The changes in the media provide many new opportunities to strengthen the accountability of government and elected representatives to the public. No one – whether journalists, MPs or civil servants – can hide any longer. All can be challenged by bloggers. Any idea of a cosy relationship between political leaders and a few heads of mainstream organisations is now long gone. The risk is that the coherence provided by the existing party/representative system is lost in the world of cyberspace and direct/participatory democracy. Vocal interest groups speaking for minorities have the chance to get their way through organisation and through exploitation of the internet, regardless of the wider public interest. It is the world of the determined enthusiast and activist. The challenge is for parties and representative democracy to adapt and change – to respond to the world of the new media and to strengthen accountability – without surrendering to destructive populism.

Part IV Representation


14 Majoritarianism under Pressure: The Electoral and Party Systems Adrian Blau

Introduction The electoral system was once seen as ‘the key to the lock’ of the British constitution (Steel 1979). In this view, the Conservatives and Labour kept their duopoly of power by locking the constitutional door to outsiders. A proportional electoral system would lead to coalition government, and the new parties in government would unlock the door to other constitutional reforms. That view is outdated: several constitutional reforms have taken place since 1997, without electoral reform. But in comparative perspective, these constitutional reforms have been moderate, not fundamental (Flinders 2005). In Lijphart’s (1999) terms, the changes have involved the federal/unitary dimension much more than the executive/parties dimension. In this book’s terms, the reforms have mainly involved geographical aspects of the concentration-of-power axis. Electoral reform might still spark further constitutional change. This chapter thus considers the prospects for electoral reform and the possible constitutional futures that could result from different electoral systems – or from the current system. Note that the party system is not part of the constitution, so I examine the party system primarily in terms of its effects on the electoral system and the duopoly of constitutional power. I leave aside such issues as party ideology and party campaigning. I start by outlining four factors undermining the single-member plurality (SMP) electoral system, often called ‘first-past-the-post’ (FPTP) (see Section on ‘The gradual decline of the British electoral system’), before considering different motivations for or against reform (see Section on ‘Initiating and enacting reform’). I then cover some possible parliamentary obstacles to enacting reform (see Section on ‘Parliamentary obstacles to electoral reform’). After exploring the three most likely alternative systems (see Section on ‘What electoral system might be chosen?’), I examine the constitutional futures that could result from changing or keeping SMP (see Section on ‘Majoritarian futures?’). 233

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My main conclusion – unsurprisingly – is that electoral reform remains unlikely, and that even if reform does occur, it will probably not be a radical change.

The gradual decline of the British electoral system The electoral system has come under increasing pressure from four related developments: a) b) c) d)

the rise of minor parties; the decline of the ‘cube law’; the decreased cohesiveness of government backbenchers; and the rise of pro-Labour bias.

I will consider each factor in turn. In 1951, the political scientist Maurice Duverger published a graph called ‘Elimination of the Liberal Party in Great Britain’, showing a collapse in Liberal votes and seats from 1910 to 1951 (Duverger 1964: 227). Figure 14.1 updates Duverger’s graph: by 2005 the Liberal Democrats had risen to 22 per cent of the vote and 10 per cent of the seats in Britain. 50

Liberal share of votes and seats

Duverger

Post-Duverger

40

30

20

10

1910 1918 1922 1923 1924 1929 1931 1935 1945 1950 1951 1955 1959 1964 1966 1970 1974f 1974o 1979 1983 1987 1992 1997 2001 2005

0

% votes Figure 14.1 Elimination of the Liberals? Note: Figures refer to Britain only

% seats

Adrian Blau

Date

1955 1959 1964 1966 1970 1974f 1974o 1979 1983 1987 1992 1997 2001 2005 Figure 14.2

Third Party Seats (%) 1.3 1.1 1.4 2.1 1.9 5.8 6.1 4.3 6.8 6.9 6.8 11.5 12.1 14.2

235

Number of seats won by Lib

SNP

PC

Ind.

NI

6 6 9 12 6 14 13 11 23 22 20 46 52 62

0 0 0 0 1 7 11 2 2 3 3 6 5 6

0 0 0 0 0 2 3 2 2 3 4 4 4 3

0 1 0 0 1 2 0 0 0 0 0 1 1 3

2 0 0 1 5 12 12 12 17 17 17 18 18 18

Third-party seats

Note: Figures refer to UK seats Abbreviations: 1974f (February 1974). 1974o (October 1974). Lib (Liberal party, before 1979; SDP/ Liberal Alliance, 1983–1987; Liberal Democrat, from 1992). SNP (Scottish National Party). PC (Plaid Cymru). Ind. (independent). NI (parties in Northern Ireland not aligned to Conservative or Labour)

Liberal resurgence is the main reason why third parties now take one in three votes and one in seven seats. (Third parties are any non-Labour and non-Conservative parties.) Also important have been the development of an autonomous party system in Northern Ireland and the rise of Scottish and Welsh nationalism (Figure 14.2). The rise of third-party seats is the chief cause of hung parliaments. If there are no third-party seats, only a tied election would produce a hung parliament. The more seats are won by third parties, the greater the chance that they will hold the balance of power, and hung parliaments become more likely (Blau 2004a: 435–8, 448–51). A second but now less important cause of hung parliaments is the decline of the so-called ‘cube law’. At its simplest, the cube law means that in a twoparty election, a party with a one percentage point lead in votes would have a three-point lead in seats, and a party with a two-point lead in votes would have a six-point lead in seats. The cube law thus helps a party with a small lead in votes win a more secure parliamentary majority. But the cube law has now declined to a square law (Blau 2004a: 432–5). John Major’s precarious majority of 21 seats in 1992 would have been larger under a cube law, and thus more manageable. A third development has been the decreased cohesiveness of parties in Westminster. Government cross-voting, defined as one or more government MPs voting against the whips’ instructions on a whipped division, has

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increased in frequency and size since the 1970s as more backbenchers have rebelled more often (Cowley 2002; Norton 1978). We should not overstate the impact (Dunleavy 2006: 325). But governments with small majorities have found life harder since 1970 (Blau 2002: 47–54, 340–6; Blau 2004a: 438–40). These three factors should be seen together: the rise of third-party seats and the cube law’s decline make small majorities more likely, and decreased backbench cohesiveness makes small majorities more dangerous. This weakens the common argument that SMP fosters secure, stable, single-party government. The fourth development has been the rise of a large pro-Labour bias. Consider a cube law with no bias: whichever party has a one-point lead in the Conservative–Labour vote would have a three-point lead in seats. Now consider a cube law with a one-point bias to Labour. A one-point lead in votes would become a four-point lead in seats if Labour won, but only a two-point lead if the Conservatives won. Recent election results have been biased to Labour and against the Conservatives, for reasons that I have discussed elsewhere (Blau 2004a: 440–4). Bias helps to explain why the Conservatives’ eight-point lead in votes in 1992 only gave a 21-seat Commons majority, while Labour’s nine-point lead in 2001 gave a 167-seat majority. Labour would not have had an overall majority in 2005 without bias (if such a situation can be conceived). This bias is not set in stone, of course: anti-Conservative tactical voting might turn into anti-Labour tactical voting, for example. But Labour’s apparent advantage will probably not disappear in the near future (Blau 2004a: 444–5), and it might increase. Pro-Labour bias could thus lead to an election with a ‘reverse winner’, where the Conservatives come first in votes but second in seats. Reverse wins could lead to popular and political pressure to change the system. A reverse win would be especially damaging if combined with a hung parliament resulting from the rise of third-party seats and the cube law’s decline. Calls for reform could be louder if this in turn followed a government with a small majority struggling to control its troublesome backbenchers – a ‘quadruple whammy’ for the British electoral system, with each of the above four developments combining to deal what could potentially be a knockout blow (Blau 2004a: 446–7). Reverse wins and troublesome backbenchers are less important than hung parliaments. By itself, a reverse win would only lead to electoral reform in two situations: if the popular outcry were so great that a party felt it must enact reform, which is unlikely; or if the losing party thought that reform would give it more chance of winning, a view I reject elsewhere (Blau 2008b: 72–5). Note too that pro-Labour bias gives Labour further incentives to keep the status quo, even in hung parliaments. Although I previously treated

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pro-Labour bias as making electoral reform more likely (Blau 2004a: 445–7), this overlooked the fact that bias gives Labour extra reasons to keep SMP.

Initiating and enacting reform There is of course a big difference between electoral reform being considered and electoral reform actually happening. To understand the prospects for electoral reform, we must therefore distinguish between two stages of the reform process, two motivations for reform, and two focuses of reform. (For more details, see Blau 2008b: 63–5.) The two stages of the reform process are initiation and enactment – starting and finishing electoral reform, respectively. Initiation is the phase of consultation, deliberation or legislation; enactment is the successful passage of legislation. The two motivations for reform are interests and attitudes. A politician may support/oppose reform because she thinks this will benefit her (selfinterest) or her party (party-interest), or she may do so because she thinks the reform is simply right, for example because her democratic attitudes lead her to favour a proportional system. It seems reasonable to suggest that among politicians, self-interest and party-interest tend to dominate, with democratic attitudes also sometimes important (Katz 2005: 61–3). The two focuses are act-based and outcome-based (Reed and Thies 2001). A politician may support/oppose electoral reform depending on whether she focuses on the very act of supporting the reform, or whether she focuses on the effects of the reform itself. For example, she may support reform because she feels bound by a manifesto commitment, or because she thinks the effects of the reform would help her party. Obviously, the interests/attitudes and act-based/outcome-based distinctions are not exclusive. And politicians may have several motivations and focuses, which may overlap or point in different directions. Act-based motivations are the most likely cause of reform initiation, for example where a major party initiates reform to get third-party backing in a hung parliament. But reform initiation need not lead to reform enactment. While the Liberals would probably have achieved electoral reform if the financial crisis had not toppled the minority Labour government in 1931 (Butler 1963: 83), they could not enforce reform in February 1974 – a reverse-win hung parliament – and they failed again when they held the balance of power from 1976 to 1979. A major party might initiate reform simply to buy time before calling another election and hopefully winning a parliamentary majority, hence avoiding reform enactment. So, a single hung parliament may not be enough for a third party to get electoral reform – although two in a row might be more problematic. A major party would thus have to see reform being in the party’s outcomebased interest if initiation is to turn into enactment – if electoral reform is to

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get off the agenda and onto the statute book. Neither major party currently sees things this way. Labour’s 1997, 2001 and 2005 manifestos all had commitments to initiate electoral reform, but enactment has never been a serious option (Hazell 2007c: 13). The Conservatives remain hostile to reform (see for example Coates 2007). Actually, some writers see reform as being in the outcome-based interest of one or other party (for example Bale 2006 on the Conservatives; Denham 2005 on Labour). But these writers make faulty inferences about how the parties would fare under more proportional systems (Blau 2008b: 70–4). The most likely scenario for electoral reform is if the leaders of a major party take a short-term view, accepting a coalition with a third party rather than biding their time in opposition or trying to govern with a minority. Even here, third-party pressure could be deflected. Consider the Liberal Democrats, who firmly support electoral reform (Liberal Democrats 2007). They currently have about three-quarters of third-party seats, and are thus most likely to hold the balance of power in a hung parliament. But if they were instead offered House of Lords reform, probably including a more proportional electoral system in the Lords, they may well accept this (see Chapter 16). It would not preclude Commons electoral reform later on, and should solidify their legislative influence in the upper house (Russell and Sciara 2007). As Richard Katz (2005: 62) notes, then, ‘both proponents and opponents of electoral reform may be prepared to trade their preferences or interests [about electoral reform] for support on other questions.’

Parliamentary obstacles to electoral reform If one or other major party initiated reform, what route would such a reform process take? In the UK there are nine likely paths to electoral reform (Blau 2008b: 77–81). Different paths affect both the likelihood of initiation becoming enactment and the type of electoral system chosen. For example, a government which fears a Commons veto might attempt to sidestep the Commons by holding a referendum before the Commons stage, not after it (Dunleavy and Margetts 2001: 317). A government could also defuse partisan controversy by asking a Citizens’ Assembly to choose the alternative electoral system, as in British Columbia (Warren and Pearse 2008). But this reduces the government’s control over electoral system details. In British Columbia, for example, the Citizens’ Assembly recommended a candidatecentred form of electoral system which politicians would not have picked. Note that the assembly’s proposals were rejected in a referendum. In the UK, Labour remains committed to a referendum, another possible obstacle to electoral reform. Of course, all nine paths in the UK involve Parliament, because parliamentary statutes are required for electoral reform. And the primary veto point in Parliament is the Commons. Would the Commons be a significant obstacle? Many people argue that electoral reform is unlikely because MPs would reject

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an electoral system which threatens their seats – the view that ‘turkeys do not vote for Christmas’, as voiced, for example, by Tony Benn (1998). In fact, the turkeys-voting-for-Christmas argument is unconvincing (Blau 2008b: 82–7). For example, a government could announce an electoral reform bill as a confidence motion, forcing most or all reluctant MPs into line. Timing could be a bigger problem. A sudden or unexpected decline may not give a party enough time to reform the electoral system. The Liberals did not reform the system when they had the chance in 1918; by 1924 they were a minor party with just 40 seats (Bogdanor 1981: 128–37). Neil Kinnock has stated that when he was Labour leader, from 1983 to 1992, he could not campaign for electoral reform – despite his preference for it – as this would have looked like an admission that Labour could not win by itself. Reform remains in Labour’s interests, he argues, so Labour should introduce it while in government, before the opportunity passes (Kinnock 2005). Timing also affects the legislative mathematics of reform. As the number of a party’s MPs falls, the proportion that would be needed to vote for reform increases. Let us assume 80 minor-party MPs backing reform, 5 Sinn Féin MPs who do not take their seats, and full turnout in a Commons vote. Thus, 321 MPs would be needed for a majority. (Some of these assumptions are unrealistic but the general point remains valid.) Let us also assume that Labour MPs are, very roughly, split into a third who favour reform, a third who oppose it, and a third who are undecided.1 Under these assumptions, a reform bill would need the backing of 242 Labour MPs – two-thirds of the current 353 MPs. If Labour lost 32 MPs, creating a hung parliament, threequarters of the remaining Labour MPs would need to vote for reform. If Labour lost 95 seats and could just form a minimal-winning coalition with the Liberal Democrats, 9 out of every 10 Labour MPs would have to back reform. Worse, Labour MPs who oppose reform are more likely to be in safe seats. So, the more a party needs reform, in a hung parliament where it wants third-party support in exchange for electoral reform, the harder reform becomes. This reflects both legislative mathematics and, in Labour’s case, the current relationship between attitudes and marginality. But preemptive electoral reform – predicting a hung parliament and enacting reform in time for the election – is unlikely. This approach is most likely for a party facing electoral meltdown, as in France in 1985 (Tsebelis 1990: 226–8). But the Liberals did not think this necessary in 1918, nor did the Canadian Conservatives before the 1993 election. Politicians are often too optimistic about their abilities to change the opinion polls, and this makes preemptive reform unlikely.

What electoral system might be chosen? So far I have mostly talked as if reform is simply a matter of whether a party favours SMP or a different system. But there are many different systems, each with pros and cons for different parties. As House of Lords

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(non-)reform shows, acceptable alternatives may be hard to find even where many people dislike the status quo. We must therefore compare different electoral systems, both because different constitutional futures could result and because different electoral systems affect the likelihood of reform in the first place. There are three likely alternatives to SMP. The first option is to keep existing seats and introduce preferential voting, probably using the Alternative Vote (AV). Under AV, voters rank each candidate in order of preference. If no candidate has a majority of first preferences, the bottom-ranked candidate is eliminated and her preferences are reallocated. This continues until one party has a majority in the constituency. A pragmatic benefit is that AV could be introduced very quickly, since existing constituencies could be kept. But politically, AV’s benefits are less certain. AV fosters tactical voting, which has disadvantaged the Conservatives in recent elections. AV would have extended this tactical voting: in 2005 Labour’s majority might have been 20–30 seats larger (Baston 2005: 42). The tactical situation is changing, however. The 2005 general election saw some tactical ‘unwind’ (Fisher and Curtice 2006), and more importantly the 2006 local elections saw anti-Labour tactical voting (Baston 2006: 58). AV could seriously disadvantage Labour if this continued. Although at least one senior Labour figure recommended AV before the 2005 election (Hain 2004), the leadership did not budge and the opportunity may have passed. As noted above, timing matters. Nonetheless, Labour figures continue to toy with the idea (Wintour 2008). The second electoral reform is a Mixed Member Proportional (MMP) system, often called the Additional Member System (AMS) in the UK. MMP systems elect representatives in two tiers: a ‘constituency tier’, usually single-member districts, and a ‘list tier’, using some form of proportional representation. The list tier counteracts some or all of the constituency tier’s disproportionality. In the Scottish Parliament, 57 per cent of seats are now chosen by SMP, and 43 per cent are list-tier seats spread over 8 regions. MMP systems are often praised for combining constituency-based representation with more proportional results (Shugart and Wattenberg 2001). A mild form of MMP was allegedly agreed to in 1996, when Tony Blair accepted a 50-seat list tier on top of the existing House of Commons (Ashdown 2000: 426, 528). We can call this ‘super-sized MMP’. But even a 100-seat or 150-seat list tier would only be mildly proportional (Dunleavy and Margetts 2005: 864–6). Of course, its limited proportionality makes it more palatable to a major party, which would not lose out much in seats. Furthermore, super-sized MMP would not require changes to existing single-member districts, so it could be introduced fairly quickly, though not as quickly as AV. Super-sized MMP also sidesteps the turkeysvoting-for-Christmas problem because it would not itself threaten any MP’s seat.

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However, super-sized MMP is politically implausible: it would further swell an already large chamber. A more likely form of MMP would be to keep about 650 seats, at least initially, with anywhere from 10 to 50 per cent of seats in the list tier. This would require a lengthier process of boundary redistricting than the above two options, but again a small list tier would probably not be markedly more proportional than the current system, which might thus make it acceptable to major parties. An MMP system in the UK would doubtless include a legal or effective threshold of at least 5 per cent, to stop extremist parties from getting representation, and perhaps in a cartelistic attempt to reduce the threat from parties like the Greens, Socialists or UK Independence Party. A third option is some form of Single Transferable Vote (STV) in multimember constituencies. STV requires voters to rank candidates in order, as with AV, but unlike AV there are many candidates in a given seat. Three or four candidates are elected in each seat in Scottish local elections and in most Irish parliamentary districts; higher district magnitudes would foster greater proportionality although large numbers of candidates in a district makes voting harder (Farrell 2001: 140–2). Lower district magnitudes are less proportional – STV with a district magnitude of one is, of course, AV. The government could thus enact a relatively disproportional form of STV. Is MMP or STV more likely for the Commons? The experience of MMP in Scotland has turned some Labour members against MMP, primarily because of tensions between Labour’s constituency-tier MPs and other parties’ listtier MPs (Lundberg 2006: 73–5). But STV tends to promote intra-party conflict, and MMP would give Labour leaders more control over candidate selection. Of course, politicians often act in instrumentally irrational ways when reforming electoral systems, for example, because of faulty information (Benoit 2007: 369). Furthermore, the experience of electoral reform in other countries suggests that bargaining often takes electoral reforms in unexpected directions. But Labour frontbenchers and backbenchers should avoid STV if they are instrumentally rational. Clearly, a new electoral system may not be very proportional. AV would increase the Liberal Democrats’ representation, but may not help other parties in the short term; in some conditions AV will be less proportional than SMP. A major party considering PR would surely prefer a system which was not very proportional – MMP with a small proportion of list-tier seats, or possibly STV with low district magnitude. The Liberal Democrats would be the main beneficiaries; the Greens, Socialists, UK Independence Party or British National Party may well win the odd representative at Westminster, but not much more (Dunleavy and Margetts 2005: 864–6). Those who advocate hung parliaments as a way to introduce electoral reform should not be overly optimistic in any respect. Even if a hung parliament arises, electoral reform may not be initiated; even if electoral reform is

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initiated, it may not be enacted; even if electoral reform is enacted, it may not be a radical change.

Majoritarian futures? I now turn to constitutional futures and the question of whether these are likely to be majoritarian. ‘Majoritarian’ has many meanings (Blau 2005; Powell 2000), and we need a sensible conception for both electoral and party systems. For electoral systems, majoritarianism must involve proportionality between votes and seats. An electoral system is majoritarian to the extent that it tends to magnify the winning party’s vote-share into a larger seatshare; an electoral system is proportional to the extent that it tends to translate a given vote-share into the same seat-share. These ‘tendencies’ are not purely systemic: they depend crucially on electoral geography, electoral behaviour and party behaviour (Blau 2004a). For example, American congressional elections are much more proportional than British parliamentary elections even though both use SMP. As the previous section explained, electoral behaviour can make AV more or less proportional. ‘Proportional’ systems too work differently in different contexts. For example, in the mid-1950s the Dutch increased their lower house’s size, which should have made elections more proportional; but more parties competed, and greater disproportionality resulted. For party systems, ‘majoritarian’ involves the scale from one-party dominance to multi-party politics. There is a long and sterile debate about how to describe the UK here. This debate is academic in the worst sense of ‘academic’: the debate is of interest only to academics and to the unfortunate students who have to answer essay questions on this trivial issue. Yet the debate often depends on simple differences in perspective. Academics usually classify party systems by looking at one part of the party system only – typically votes, or seats, or competition for government. But different academics look at different parts of the party system. Thus Dunleavy, Lijphart and Sartori all classify the UK party system differently, but it turns out that this is because Dunleavy looks at votes, Lijphart looks at seats, and Sartori looks at competition for government (Dunleavy 1999: 214–5; Lijphart 1999: 75; Sartori 1994: 33–40). I have argued that we should count parties not at one scale but at four: votes, seats, legislative power and cabinet power (Blau 2008a). I quantify the number of parties with the widely used ‘effective number of parties’ index (Laakso and Taagepera 1979). The index provides an intuitive guide to the degree of multipartism. For example, if two parties have 50 per cent of the vote each, the index is 2.0. With three parties taking 50, 40 and 10 per cent of the vote, the index is 2.4, which is nearly midway between two and three

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parties. The index has certain imperfections (Dunleavy and Boucek 2003), but this need not worry us here. Figure 14.3 shows estimates of the effective number of parties at these four scales since 1922, the first election after Irish independence. Note that even this approach focuses at the Westminster level, and a fuller assessment of ‘the’ British party system would require sub-national analysis. Four features are worth noting. First, only in the 1950s and 1960s did Westminster elections approach two parties in votes. We now have the equivalent of 3.5 parties in votes. Second, multipartism in seats has also increased since the war, but more slowly than multipartism in votes. We now have the equivalent of 2.5 parties in seats, although this figure could quickly rise or fall, primarily depending on the Liberal Democrats. Third,

4.0

Effective number of parties

3.5

3.0

2.5

2.0

1.5

1922 1923 1924 1929 1931a 1931n 1935j 1935n 1940m 1945 1950 1951 1955 1959 1964 1966 1970 1974f 1974o 1976a 1977 m 1978a 1979 1983 1987 1992 1994n 1995a 1997 2001 2005

1.0

NV Figure 14.3 power

NS

NL

NC

Effective numbers of parties in votes, seats, legislative power and cabinet

Note: NV, NS, NL and NC represent the effective number of parties in votes, seats, legislative power and cabinet power respectively. I calculate additional values of NS, NL and NC for intra-parliamentary changes in coalition status (August 1931, June 1935 and May 1940) and intra-parliamentary changes in majority/support status (April 1976, March 1977, August 1978, November 1994 and April 1995). I weight figures by length of time, to prevent short periods having undue effect. For further details, see Blau (2008a: 172–85).

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legislative power was quite widely dispersed in several pre-1945 parliaments, but one party has dominated since then, except in the minority parliaments of the late 1970s and mid-1990s. Fourth, cabinet power was quite widely dispersed in the pre-1945 coalitions, but has been exactly 1.0 since then, with single-party cabinets. In summary, from 1922 to 1945 the Liberals’ decline and Labour’s rise led to multipartism at all levels of the UK party system; since 1945, creeping multipartism in votes and seats has occasionally led to hung parliaments where legislative power was more widely shared, but cabinets have remained single-party affairs. This picture of the British party system is more helpful than traditional attempts to define it monolithically as a two-party system, or a two-and-ahalf-party system, or a multi-party system. Unfortunately, a two-dimensional graph with one dimension already taken by the electoral system means that we do need a monolithic measure of multipartism here. As this book is about constitutional futures, we must ultimately focus on the party system in terms of power – specifically, the distribution of, and competition for, legislative and executive power. I must stress that I do not view this as the ‘real’ nature of the UK party system; I am merely simplifying in order to depict constitutional futures on a two-dimensional graph. How we count parties depends on where we look, and for a book on constitutional futures we must look mainly at power – without forgetting that creeping multipartism in votes and seats can lead to further multipartism in legislative and cabinet power. Figure 14.4 depicts constitutional futures in terms of majoritarianism for the party and electoral systems. (The party system, to reiterate, is not itself part of the constitution but affects many other parts of the constitution.) One-party dominance, in the north-west quadrant, means that one party keeps winning a majority of seats. (We should not talk of ‘elective dictatorship’, a term which is insulting and inaccurate – insulting to people who have lived and in many cases died under real dictators, and inaccurate because it understates legal checks on the UK’s rulers.) One-party dominance differs from the so-called Westminster Model where two parties alternate in power over time. But in both cases, one party has almost all legislative and executive power at any time. Of course, a duopoly of power is the exception, not the rule, for British politics in the late 19th and 20th centuries (Bogdanor 2004: 733; Dunleavy 1999: 214–7). The current UK situation is somewhat more multi-party than the Westminster Model. And the inter-war UK saw a higher degree of multi-party politics, discussed above. This involved minority governments, coalition governments, and parliaments where the largest party could not guarantee its legislation. The UK is currently heading towards this north-east quadrant of the graph. If creeping multipartism increasingly spills over into the legislative and cabinet arenas, and if there is no electoral reform, we may well return

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Electoral system: Majoritarian One-Party Westminster Current dominance model UK

InterWar UK

AV

MMP Low STV Low

Party system: One-Party

Party system: Multi-Party

MMP medium STV medium

MMP high

Electoral system: Proportional Figure 14.4

List high

Constitutional futures: the electoral and party systems

to the pre-war situation of coalitions and minority governments. So, one constitutional future is multi-party politics under SMP. But the north-east quadrant would probably be unstable, in two senses. First, governments would fall more often. Second, this would in turn give incentives to voters and parties to move the UK to a different quadrant. Voters could coordinate by deserting third parties, returning to the north-west quadrant’s two-party dominance (Figure 14.5, arrow 1). Or parties could introduce a more proportional system, fortifying multi-party politics and moving the UK to the south-east quadrant (Figure 14.5, arrow 2). AV is sometimes seen as majoritarian because it gives (artificial) majorities at the constituency scale: if all voters complete their ballot papers, every elected MP will have a majority of votes. But my focus is on majoritarianism at the national scale, and AV can help or hinder this. Third parties should benefit from AV’s greater voter choice, but this may not make election results more proportional if there is a significant bias against one of the

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Electoral system: Majoritarian 1

Party system: One-Party

Party system: Multi-Party

2

Electoral system: Proportional Figure 14.5 Two likely scenarios for the electoral and party systems

major parties. AV can be either majoritarian or proportional; I assume that the former is more likely, although some elections will be more proportional. AV will almost certainly increase third-party representation, primarily for the Liberal Democrats, so Figure 14.4 depicts the AV area as more multi-party than for SMP. But positioning AV on the graph is particularly tricky. MMP low, STV low refers to MMP systems with a relatively small district magnitude for list-tier seats (as in the Jenkins Commission’s proposals for MMP) and STV with a district magnitude of 2. (STV systems are actually hard to classify in terms of proportionality – Farrell 2001: 140, 155–6.) At low district magnitudes, either MMP or STV would be more proportional than SMP, and hence would probably increase the degree of multipartism. But this would not be a major shift from the current situation, unless the greater leverage of third parties led to an even more proportional system later on, such as MMP medium, STV medium, which has higher district magnitudes. Examples are Scottish legislative elections (for MMP), and Scottish local elections and Irish parliamentary elections (for STV), discussed above. These more proportional systems are less likely to be chosen straightaway, unless the choice of electoral systems is delegated to a Citizens’ Assembly. MMP high involves a highly proportional MMP system with a 5 per cent threshold, as in Germany. (As noted earlier, STV with a high district magnitude is not a realistic option for the UK.) List high involves a party list system as in the Netherlands. Assuming that the latter option did not have a 5 per cent threshold, it would usually be more proportional than a system with a threshold, but in both respects it is a very unlikely option for the UK.

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Note that the placing of these alternative electoral systems is very approximate. Note too that the south-west quadrant of the graph is largely empty: except in small countries with few social/political cleavages, proportional electoral systems do not end up with one- or two-party politics. I would again emphasise that proportionality of power involves more than just the electoral system. Consider Germany, where different parties share power more proportionately than the UK (Blau 2008a: 176–81; Powell 2000). This reflects not only Germany’s proportional electoral system and its coalition governments, but also its legislative system. The lower house’s strong committee system gives opposition parties more influence, and the constitutionally strong upper house is often controlled by parties different to those with lower-house majorities. Opposition parties already exercise increasing influence in the UK House of Lords, and Commons committee reform might happen without electoral reform. So, proportionality of power can increase without electoral reform. In the UK, the legislative route to more proportional power is more likely than the electoral route, in the short term.

Conclusion Significant electoral reform remains very unlikely. Even in a hung parliament, electoral reform may not be initiated: the governing party still has considerable executive powers without a legislative majority, and reform would probably not be in Conservative or Labour interests. Even if thirdparty pressure leads to an electoral reform process starting, it may not end in electoral reform: there are many act-based and outcome-based interests and attitudes which can drive a wedge between reform initiation and enactment. Even if electoral reform is enacted, it would probably not be a radical change, as this is not in Conservative or Labour interests. Nonetheless, we have already gone some way along the multi-party path. Historically, this is of course a well-trodden path; ‘the pitiless iron law of the plurality system’ (Duverger 1986: 79) has been rusty for much of the time since 1885. Even without electoral reform, further increases in third-party influence are probable. Not only are hung parliaments and small government majorities more likely than before, but we can expect to see greater proportionality of power through legislative reform and/or electoral reform in the second chamber. The latter could well be offered in place of Commons electoral reform in the event of a hung parliament. The most likely constitutional futures for the UK, then, are more multiparty in terms of the party system, and probably more proportional for the electoral system. Whether the former precedes the latter, or vice versa, remains uncertain; much will depend on the particular details of the time at which reform is initiated. And it is hard to predict whether the UK moves to the north-east quadrant on Figure 14.4 and back again, or to the north-east

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quadrant and then to the south-east. But if electoral reform does occur, it is unlikely to be strongly proportional. And even an extreme electoral reform would hardly touch the real basis of the UK constitution: control by the upper ranks of party politicians.

Acknowledgements For comments and criticisms on earlier versions of this chapter and the ideas in it, I thank Tim Bale, Giacomo Benedetto, André Blais, Shaun Bowler, Ken Carty, Malcolm Clark, David Farrell, Robert Hazell, Indriði Indriðason, Csaba Nikolenyi, Meg Russell, Matt Shugart and Mary Southcott. For advice and comments on particular issues, I thank Tom Lundberg, Kevin Morgan, Ken Ritchie and Alan Ware. Earlier versions of parts of this chapter were given at the Plurality and Multi-round Elections conference, Université de Montréal, 17–18 June 2006, the Elections, Public Opinion and Parties annual conference, University of Nottingham, 8–10 September 2006, and Constitutional Futures events in Bristol and London. I thank participants for their comments.

Notes 1. I thank Mary Southcott for these estimates about Labour MPs.

15 Whither the Parties? Justin Fisher

Introduction At the core of the major parties’ organisations are two key components: members and finance. British parties face dilemmas with both. As in the rest of Europe, levels of party membership are in broad decline (Mair and van Biezen 2001), and whilst not perfectly correlated, so are levels of traditional party activism (Fisher et al. 2006a; Scarrow 2002). Equally, parties face continuing problems in raising sufficient income to finance their activities – in particular the routine maintenance of party infrastructures (Fisher 2002a). Against this backdrop lies an apparent paradox – a normative preference from parties and the public alike for parties to be large grass-root organisations, funded (preferably in a series of small donations) by their own supporters, and fighting elections with only modest means (Constitutional Affairs Committee 2006; Mactaggart et al. 2006; see also Hopkin 2004). The fact that this scenario never really existed is not important. As with many aspects of politics, parties find these core elements of their organisation subject to comparison with a ‘better yesterday’. This chapter therefore considers the dilemmas for the parties and maps out four potential scenarios in relation to party members and activism, developments in party funding, and the impact of present and future party-funding regulations.

Recent trends Party membership and activity Party membership in Britain is broadly in decline. This is well-illustrated by an examination of the average membership of constituency parties during the period 1992–2005 (Figure 15.1).1 Notwithstanding a small revival in 2005 (probably somewhat exaggerated in the case of the Conservatives – see endnote 1), the picture for all parties has generally been one of decline since 1992. Whatever the reasons for this decline in membership, it is clear that parties will have found it increasingly difficult to mount strong traditional 249

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Conservative Labour Liberal Democrats

1992

1997

2001

2005

1,542 444 166

732 592 162

646 475 130

892 349 157

Figure 15.1 Mean number of party members per constituency, 1992–2005 Source: see endnote 1

Conservative Labour Liberal Democrats All

1992

1997

2001

2005

131 116 87 109

109 115 83 103

107 98 77 93

127 97 89 97

Figure 15.2 Trends in traditional campaigning Source: See endnotes 1, 2

campaigns based upon volunteer labour (Figure 15.2). And, as comparative evidence shows, faced with a decline in membership, parties often have little choice but to turn to more modern campaign tools in order to meet the shortfall of campaign workers (Denemark 2003; Ward 2003). This is also true in Britain. As Fisher and Denver (2008) show, levels of traditional campaigning are falling, whilst more modern, less labour-intensive, techniques are becoming increasingly important. Figure 15.2 describes the trends in traditional campaigning using a quantitative index, which includes measures of poster and leaflet distribution, doorstep canvassing, public meetings and what might be called ‘manual’ polling-day activity – such as number taking and knocking up.2 Overall, it shows that, despite a slight revival in 2005, traditional campaigning has tended to decline.3 Party finance Soon after he came to power, Tony Blair asked the Committee on Standards in Public Life (CSPL) to consider the issue of party funding. The committee reported the following year, and almost all of its recommendations were included in the Political Parties, Elections and Referendums Act 2000 (PPERA). PPERA represented the most fundamental overhaul of British party finance since 1883. It introduced transparency for donations, banned foreign donations, set campaign expenditure limits at national level and established an Electoral Commission to oversee the whole process. Compared with the previous lack of regulation, the Act was radical. But it also represented a rather British response to the ‘problem’ of party finance. In other European countries, the response to party-financing difficulties has

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often been to introduce extensive state funding, either as a means of compensating for the loss of private income (which was considered suspect) or as a means of supporting parties to ensure their survival as the principal intermediary between the citizen and the state (Nassmacher 1993: 234). The response in Britain was to re-affirm the central importance of parties, but to maintain the tradition of funding parties primarily through voluntary means. And, as a result, whilst donations were now subject to declaration requirements, no limits were imposed on the size of any single donation. Yet despite PPERA, funding remained on the agenda. First, the new transparency rules generated more stories about party finance and therefore more public (or media) unease (Fisher 2002a). And though the reporting of donations was quite legitimate, the tone was not always responsible (Fisher 2006). Second, the national spending limits on elections introduced by PPERA did not reduce the parties’ demand for money (Fisher 2005). The parties’ continuing financial needs led to large donations becoming a far more significant component of party income, which has raised questions about whether such donors enjoy any leverage within the parties (Fisher 2002a). The actual evidence for this is very thin, but if such concerns persist, they can undermine public confidence in the entire political system. In 2003, the Electoral Commission announced that it would be reviewing party funding, specifically looking at caps on contributions from individuals and institutions and the case for further state funding. It reported in 2004 and decided that the time for change had not yet come (Electoral Commission 2004a). But events in 2005 again put party funding in the spotlight. In the build-up to the 2005 campaign, the Conservatives and the Liberal Democrats appeared to challenge the spirit of the 2001 legislation (Fisher 2005). Then, in spring 2006, it emerged that Labour had also sought loans rather than donations, and that a number of those making them had subsequently been nominated for political honours. In fact, all nominations were rejected by the House of Lords Appointments Commission, but a ‘loans for peerages’ crisis ensued, which included a police investigation. Ultimately, and very importantly, no charges were brought. The government acted swiftly to close the loans loophole by tagging a provision onto the Electoral Administration Bill, which came into force in the autumn of 2006. But the loans episode threw the whole issue of party funding into focus again. The result was that the Prime Minister ordered a review of party funding. Chaired by Sir Hayden Phillips, the review was charged with evaluating the case for further reform, and brokering a consensus between the parties. However, the review was not the only report to examine aspects of party funding at this time. Alongside was an investigation by the Constitutional Affairs Select Committee as well as a review of the Electoral Commission by the CSPL. All three reported between December 2006 and March 2007, and importantly, a consensus emerged – namely a

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1. The status quo, in which there are no caps on donations, is unsustainable and therefore donations to parties should be limited. 2. Restrictions on donations should be buttressed by measures to prevent breaches of the new regulations. 3. Expenditure on general election campaigns has progressively grown and should now be reduced. 4. Controls on expenditure by all ‘third parties’ should be strengthened. 5. The price of a fairer, more stable system of party political financing may be some increase in public funding of political parties. 6. Any increase in public funding should be linked to a recognised measure, or measures, of popular support, and should encourage greater democratic engagement. 7. The public should have access to better, clearer information on the sources of party income. 8. A new funding settlement will present the regulator with fresh challenges. The Electoral Commission must have the powers, the capacity and the practical experience needed to fulfil its new role.

Figure 15.3 Recommendations of the Phillips review Source: Phillips 2007

stronger and more active role for the Electoral Commission, greater regulation of party finance, and an enhanced role for the state in terms of party funding. At the time of writing, the parties are in disagreement about two aspects of the proposals put forward by Phillips (caps on contributions and greater regulation of constituency-level spending). However, the broad principles in respect of the Electoral Commission, lower national spending caps and enhanced state provision seem to have been accepted (see Figure 15.3).

Main issues in the next ten years The changes likely in the next ten years are an extension of recent trends. First, recent patterns of electoral competition suggest the Conservatives are undergoing an electoral revival. If this trend continues, then rates of decline in membership and activism will be likely to be asymmetric in the short to medium term, since electoral performance is a driver for arresting or accelerating membership and activism decline (Fisher et al. 2006a). Second, the improvement in Conservatives’ electoral fortunes will probably stimulate donations. Since David Cameron has been the leader (and opinion poll ratings have improved), donations to the party have increased such that the Conservatives are in a stronger financial position than Labour. As such, the party may come to review its stance on donation caps. Third, in the light of the Phillips report, there is likely to be at least some change in party-funding regulations. At the very least, a reduction in the national spending cap for general elections is likely, since all parties

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supported this move. However, should the recommendations of the review be more fully implemented, it is likely that this would mean both further restrictions on party income (in the form of some kind of cap) as well as greater regulation of expenditure at constituency party level. Should a donation cap be introduced, there could potentially be important consequences for Labour, since some argue that such a cap would threaten the constitutional links between trade Unions and the party (Ewing 2007). If nothing else, the relationship will be subject to more scrutiny. The outcome of all of these changes, together with more proactive regulation by the Electoral Commission, is that it is likely that there will be more breaches of electoral law. Some of these may be by intentional design, but a more likely outcome is accidental breaches, brought about through a lack of understanding of the new regulations – particularly amongst volunteers. Increased regulation of constituency campaigns is likely to be particularly significant in this respect, and will present real challenges for parties both in versing their volunteers in the new regulations and in being able to draw on a sufficient pool of volunteers who are willing to subject themselves to greater regulation and the consequences of possible breaches. The likelihood of these changes is in part a function of key future dates and events. In the short term, the failure of the parties to agree over the Phillips review has delayed change. In the medium term, however, general election results and the performance of parties at sub-national and supranational elections will be significant. At national level, a majority government in 2009 or 2010 may be more or less likely to engage in reform (see drivers of change) – equally, a coalition could force the issue high on the political agenda. In the longer term, the performance of the national parties in 2007 has already presented a challenge to the Westminster focus of party-funding regulations. Should this performance be repeated in 2011 and 2015, the focus of party-funding regulation would be bound to change. This may also be prompted by the performance of other smaller parties in the European Elections of 2009 and 2014. In 2004, both the Greens and the UK Independence Party were successful in winning seats at the European level. Were this feat to be repeated, the emphasis of regulators on the main three parties would again require revision. Equally, the introduction of a House of Lords elected by proportional representation would almost certainly broaden the number of parties represented in the upper house and therefore further diffuse the concentration on the three principal parties.

Drivers of change The drivers of change for political parties are related to institutional, political and social factors. Parties are somewhat different from other political institutions as they are rooted both in formal politics and also in wider society. In terms of society, there are three principal drivers. First, levels of

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trust in political parties are a partial driver of change in the area of party finance – improvements in public confidence are seen as an important component of party-funding reforms (Constitutional Affairs Committee 2006; Phillips 2007). Equally, purported falls in public confidence have proved to be a spur to previous efforts at reform (CSPL 1998). Second, changing patterns of leisure are likely to further compound declines in levels of membership and activity. Party membership was at its highest when there were fewer alternative social distractions (see, for example, Webb 1994), and, as those distractions have continued to grow, membership has broadly declined. Finally, technological developments help drive change within parties. Fisher and Denver (2008) show how the availability and falling cost of technology has been influential in the growth of modern, non-labour intensive forms of campaigning. Moreover, technology transforms communications between parties and their supporters and has the potential to draw in supporters as well as more traditionally active members. The second set of drivers is a function of political developments. First, the level of competitiveness of elections is likely to have an impact on membership, activity and finance. Marginality and electoral success tend to stimulate both levels of membership and activity (Fisher et al. 2006a). Thus if elections become more competitive, we would expect the decline in party membership and activity to be slowed. In the case of parties whose support may be geographically concentrated, the rate of decline or recovery may be asymmetric – a possible example being the Conservatives, who may perform well in England, but not elsewhere. In terms of finance, increased competitiveness is likely to lead to a greater element of strategic thinking by parties in terms of reforms. There are two possible outcomes. First, close elections have the potential to generate a game of co-operation between parties. For example, let us say the Conservatives and Labour remain dominant. If Labour acts alone and seeks only to protect itself, there is a risk that when the Conservatives return to power, they will act in a punitive manner towards Labour. The Conservatives face the same dilemma. As a consequence, since both parties have an incentive to resist increased competition, the optimal outcome is coordination. This ensures that new entrants are disadvantaged, whilst reducing the risk of punitive action by the other party when it enters power. This approach informs the idea of the ‘cartel’ party put forward by Katz and Mair (1995: 20–1), who suggest that the emergence of a cartel system has a number of consequences – campaigns run by cartel parties are almost exclusively capital-intensive, professional and centralised, and parties rely increasingly on state subventions for their resources. This affects the status of members within parties, making the distinction between members and non-members potentially more blurred, with non-members invited to participate in party activities and decisions.

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A second outcome is advanced by Susan Scarrow (2004). Her ‘electoral economy’ model suggests that parties may seek to gain competitive electoral advantage by actively opposing state subventions, even though such a move would be financially damaging. Equally, as Fisher (2007) shows, they may advocate enhanced regulation for similar motives. From an electoral economy perspective, we move from a game of co-ordination to one of conflict. Parties not only seek funds sufficient for their own needs, they also consider the effects of state subventions on their political competitors. According to Scarrow (2004: 656), this helps explain why parties in receipt of individual and institutional donations, who have less need for state aid, have often been amongst the fiercest critics of state subventions. A second consequence of this model is that parties may take public opinion into account on issues of state subventions and regulation, and accordingly take a position, which may not be financially advantageous to them. Scarrow (2004: 657) suggests that two likely outcomes flow from such patterns. First, when the public is ‘inattentive’, the political costs of introducing additional public expenditure in the form of state funding are likely to be relatively low. However, and second, the costs rise considerably when there is negative publicity pertaining to party finance (and probably to parties in general). The result is that parties are less likely to support increases in state subventions in such circumstances. But more critically, ‘electoral economy’ parties may seek to gain competitive political advantage by actively opposing increases in subventions or advocating enhanced regulation, even if this is potentially damaging to the party. A further political driver is a function of changing party leaderships. New leaders can have a revitalising effect on membership and activity (see the Blair effect in Figure 15.1). Equally, a change in leadership provides the opportunity to break with the past or, perhaps, renew links with particular sections of a party in respect of party finance. For Labour, the trade Unions are particularly pertinent here. The final ‘political’ driver is the level of ideological distance between parties. Seyd and Whiteley (1992) show that in the case of Labour members, ideological distance provides a spur for activity. Equally, parties that are closer together may be more willing to embrace party-funding reform, whilst greater ideological distance is likely to generate more entrenched party positions in maintaining the status quo. Finally, there is an institutional driver of change in the shape of the new regulatory focus of the Electoral Commission. Following reports by the CSPL (2007a) and the Phillips review of party funding (2007), the Electoral Commission (2007) has declared its intention to take a new and more focused regulatory role. This has specific implications for party-funding reform. The likelihood is that there will be a move away from the co-operation and consensus approach that characterised the Electoral Commission previously towards a more legalised regulatory approach with the potential for a

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stronger separation between the Commission and the political parties. That said, it is worth considering how far the Electoral Commission is willing (or able) to move in this direction. The previous ‘co-operation’ with parties was built partly through necessity – both the legislation (PPERA) and the Commission were new entities, and both parties and Commission were part of a learning process. A shift towards tighter regulation (and perhaps more regulation) will also present a learning challenge.

Main constraints on change Against these drivers of change are some constraints. First is the question of the contribution caps and their possible impact on the relationship between the Labour Party and affiliated trade Unions. Should contribution caps not be introduced for trade Unions (and more likely, in this case, for any donations), the impetus fundamentally to reform party finance any further will diminish. This will have several effects over and above the lack of donation caps. First, more extensive regulation of constituency campaigning will probably not be implemented, since this is also an area of disagreement between the parties. Second, any increase in state funding will be far from substantial, since contribution caps have been seen as the price parties must pay for enhanced state funding. Third, there is likely to be a hostile media reaction to more extensive state funding regardless. Press opinion on this issue has generally been negative and so it may be difficult for a government to introduce it, especially if it is accompanied by any cuts in public spending. Finally, the normative institution of the existing party-funding regime will be difficult to challenge. As Clift and Fisher (2004) show, despite the extensive regulations introduced by PPERA, the voluntary basis of British party finance emerged relatively unscathed. Such normative preferences will also apply to party activity. A residual commitment will remain, making attempts to ‘modernise’ campaigning further more difficult, despite the shrinking pool of voluntary labour.

Four scenarios The matrix for this chapter has two axes (Figure 15.4). The east-west axis represents the Political Constitution/Legal Constitution continuum, with an emphasis on trust (political) versus rules (legal). This reflects the ‘logic of appropriateness’ developed in Clift and Fisher’s (2004) analysis of partyfunding reform in France and Britain. The normative tradition in France has been to apply a strict rules-based approach, whilst in Britain the reform process has relied much more on the principle of trust as a result of a comparative absence of loophole-seeking in electoral law. Thus, the political constitution represents a fundamentally trust-based approach, based

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Traditional Westminster Westminster Model · Retention of the unrestricted trade Union/Labour link · Traditional modes of campaigning maintained · Larger ideological distance between parties · Focus on the Westminster parties · Politicised Electoral Commission

Reformed Westminster Model · Tightening of party regulations · Regulations reflect old norms of party funding arrangements and activity · Regulations and reforms focus on boosting popular participation · Continued focus on Westminster


Legal constitution

Pragmatic Dispersal · Blurring of distinction between members and supporters, and their role within parties · Growth of e-participation · Growing domination by party elites · Support for extensive state funding from a centre-left coalition · Less ideological distance between the parties · Electoral Commission continues to work with parties · Limited incorporation of nonWestminster focused parties

Cartel Plus · Membership decline · Central domination of parties · Extensive state funding · Caps on donations · Changes in electoral law regarding media broadcasting · Highly proactive Electoral Commission · Fuller, but not complete, incorporation of nonWestminster focused parties

Modern ‘realist’

Figure 15.4

Four scenarios for political parties

on co-operation with parties. The legal constitution represents a rule-based approach, with regulators like the Electoral Commission actively distancing themselves from the parties in the implementation of regulation, and potentially any regulatory innovation.

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The north–south axis is loosely covered by the Centralisation of Power/Dispersal of Power continuum, but focuses more on traditional (Westminster) conceptions of parties versus a more modern (‘realist’) conception. Thus, the modern conception acknowledges both the multiple domains in which British parties compete (Westminster, sub-national, supranational) and a looser conception of party membership. Overall, the matrix produces four quadrants: the Westminster Model, the Reformed Westminster Model, the Pragmatic Dispersal model and the Cartel Plus model. The Westminster Model This scenario represents something of a retreat from the current position. First, it reflects two particular aspects of recent reviews of party funding. The Phillips review proposed the capping of all contributions to political parties – including those from trade Unions. The reaction to this proposal from sections within the Labour Party was hostile, with the claim being made that such a proposal would threaten the integrity of trade-Union relations with the Labour Party and by implication, the constitution of the party itself (see, for example, Ewing 2002a, 2007). As such, the argument presented was one whereby the internal structures of political parties should not be subject to state interference, which in turn meant that restrictions of contributions size were resisted. Should this resistance continue, the likely outcome would be retention of the unrestricted link between trade Unions and Labour, and depending upon the level of electoral competition, either a comparable retention of unrestricted contributions from other sources, or the retention of the collective trade-Union contributions, whilst placing restrictions on private or corporate contributions. Given the uncertainty of electoral competition, the former is more likely. Second, all three reports on party funding published during 2006 and 2007 recommended that the Electoral Commission should include those with party political experience amongst the Commissioners. Party activists were precluded from either serving as Commissioners or being employed by the Commission under the terms of PPERA, and this exclusion indicated a move towards more of a legal constitution in the context of these axes. The potential introduction of former politicians into the work of the Commission would mark a retreat from this move and emphasise the so-called political constitution. Another important aspect will be likely to influence developments in party membership and party funding – namely, a strong normative preference for traditional modes of election campaigning. Throughout the various discussions of party-funding reform were oft-aired views that election campaigning ‘on the ground’ was preferable, that parties ‘wasted’ money on certain forms of advertising, and that parties could and should campaign with a lower budget (see, for example, Mactaggart et al. 2006; Tyrie 2006). Whatever the reality of such claims, the future implication would be the maintenance

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and promotion of traditional, labour intensive forms of election campaigns, despite the difficulties in mounting such exercises. Overall, the scenario of the Westminster Model would represent a chronological retreat from the current situation. First, the introduction of party political actors into the work of the Electoral Commission would represent a move back towards the principle of self-regulation by politicians. Moreover, given that the number of Commissioners is small and relatively finite, the likelihood is that members from the large Westminster-based parties would be the principal representatives (indeed that is the recommendation of the Phillips review). Thus, despite the changes in party systems cemented by devolution and the use of alternative electoral systems, the focus would be as, if not more, strongly on Westminster as it was previously. Second, the active promotion of traditional modes of election campaigning would mark a reversal of recent trends in campaigning (Fisher and Denver 2008).

The Reformed Westminster Model This scenario represents on the one hand, a change from the existing position (in terms of a tightening of party regulations), but on the other, a preference for many existing aspects of party funding and activity. The principal change from the Westminster Model is that regulation of party finance is significantly enhanced, reflecting the new proactive regulatory stance of the Electoral Commission. As a result, the distancing of the Commission from the parties, together with a more proactive regulatory role and enhanced powers, means that party finance would be subject more to the legal constitution rather than the political one. Parties would be trusted less to self-regulate, and regulation would be placed more in the hands of a semi-judicial Electoral Commission. A second change related to this would represent both a move towards more of a legal constitution as well as a preference for traditional forms of political activity – the use of regulations to try and boost traditional forms of political participation. The Phillips review represented an example of this approach by seeking to promote grass-roots support of political parties through regulation. The key points here are first, that there is a continuing preference for traditional party activity (as represented by the Traditional Westminster axis). However, it is regulation that is used to promote these kinds of activities, rather than leaving this to the parties alone. In effect, the legal constitution approach becomes a means of promoting membership and activity in voluntary organisations. Second, whilst the tightening of regulations represents a move east along the legal constitution axis, the model remains fairly traditional through a lack of fundamental change in the basis of party funding. This entails some extension of state support, but with funding remaining largely voluntary. Sources of financial support would continue to be largely unrestricted, with

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trade Unions, companies and wealthy individuals continuing to play a significant role in party income. In addition, the principal focus for the main parties would continue to be Westminster – both in terms of activity, and in terms of party-finance regulation. The normative preferences reflected in the Westminster Model would continue, albeit with tighter regulation and state involvement (via regulation) in helping to promote these ideals. The Pragmatic Dispersal Model This scenario represents continuity in terms of a political constitution, but change in terms of a move away from the Traditional Westminster focus, towards one that is more modern and reflects party funding norms in other European countries. In terms of the constitution axis, there is a reflection of the British tradition of incorporating the regulated into the regulatory regime. Thus, in this scenario, the Electoral Commission would continue to work with parties, rather than be a wholly independent regulator, much as it does in the Westminster Model. There are, however, two distinct aspects in this model. First, the focus in this scenario is essentially ‘realist’ – an approach to party membership, activity, funding and regulation which reflects ‘what is’ rather than ‘what ought to be’. The previous two models both attempt to promote what is seen as a normatively preferable means of party activity and funding. This scenario represents recognition of declining traditional forms of membership and some forms of voluntary income. However, and second, rather than try to reverse these trends, either by an appeal to a ‘better yesterday’ (Westminster Model) or through strategic regulation (Reformed Westminster model), the approach here is to allow new concepts of party membership and funding to evolve, which is broadly achievable within the context of changing patterns of leisure time and greater competition for political contributions (both financial and voluntary) from other political and quasi-political organisations, such as pressure groups and peak associations like Make Poverty History. This manifests itself in a number of ways. First, traditional conceptions of membership are re-examined. Up to a point, this process has already begun in the Labour Party. Prior to reforms instigated by Neil Kinnock, membership of the Labour Party was handled with varying degrees of success by constituency Labour parties. There was also a formal (if not always observed) requirement that members should belong to a trade Union. Kinnock’s reforms transferred membership to the central party and thus enabled people to join the party by bypassing local activists. The concept of membership had become less formal. Ironically, there has been a similar change in the Conservative Party, though in the opposite direction. Hitherto, membership of the Conservative Party had been a rather vague concept, with no set membership fee (Whiteley, Seyd and Richardson 1994). The basis of Conservative membership is now more akin to that of Labour – centralised membership with a fixed fee.

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However, despite the parties uniting around a broadly common approach to individual party membership, the contention here is that there will be both a growth of the category of ‘party supporter’, and a blurring of the distinction between members, supporters and their respective roles within parties. Four developments point to the possibility of this occurring. First, in Labour’s organisational reforms of 1996/1997 (Partnership in Power), non-party members were permitted to provide input into the policymaking process at the stage of the policy commissions along the lines of Kirchheimer’s 1966 ‘catch-all’ thesis (Fisher 2002b). Second, Labour has recently established a supporter database, and there are current debates regarding the incorporation of supporters into the activities more usually reserved for traditional members (Horton et al. 2007).Third, the Conservatives have been experimenting with primaries for candidate selection and have themselves established a supporter network. Finally, the Phillips review recommended the encouragement of web-based contributions that would attract a degree of matching funding. All four developments represent to varying degrees a challenge to both the idea of membership as the principal basis of support for parties and the traditional power of party members. Moreover, the increasing use of technology and e-communication for policy consultations and party referendums makes this easier to accomplish, since there are fewer barriers to information. As a consequence, in this scenario the linkage of individuals to parties becomes blurred or less formalised, with supporters enjoying similar levels of input into party decision-making as more traditional members. As a result of parties recruiting supporters as well as members, and of members having decreasing levels of time resource available, elite domination of parties will grow and will be subject to less resistance than is the case in more traditionally structured parties – again in line with Kirchheimer (1966). There is clear precedent here in terms of the research on pressure groups. Jordan and Maloney (1997) show how in some large pressure groups, membership is passive in terms of internal decision-making and is encouraged to be so by the leadership, who enjoy significant autonomy. The second way in which the ‘realist’ approach manifests itself is through a stance on enhanced state funding of parties. In this scenario, there is recognition that voluntary income is unreliable and non-responsive (Fisher 2000, 2002a), generally insufficient for parties’ needs, and forces parties to devote excessive time to fund-raising – sometimes from sources the parties would prefer to avoid. As a consequence, a ‘realist’ approach is taken by the centre-left parties (Labour and the Liberal Democrats) in advocating extensive state funding. This approach has the advantage for both parties of removing the uncertainty of their income streams, and allowing them to compete with a Conservative Party that is both electorally strong and the more likely recipient of donations from wealthy individuals. It has extra appeal for ‘realists’ within the Labour Party, who see the development as an

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opportunity to reform, or even sever, the party’s formal links with the trade Unions. The third way in which ‘realism’ asserts itself is a diminishing concern with claiming ideological distinctiveness between parties. This is not a new process. First identified in theoretical terms by Downs (1957), its application has seemingly been broadly reflected in party behaviour (at least as measured through manifesto stances) (Bara 2006). Notwithstanding, parties have continued to try to present themselves internally, at least, as being qualitatively different from other parties in terms of values and principles. The ‘realist’ perspective does not abandon difference – as Downs (1957) points out, voters need this as a form of ideological shorthand. Moreover, parties need to retain credibility, and ‘position-hopping’ can present difficulties in terms of political integrity (Downs 1957). However, the logic of electoral competition is such that parties compete increasingly around a small ideological space, should public opinion demand it. This being so, parties will accept leadership domination to allow sufficient flexibility to shift in response to the ideological and electoral market, whilst the growth of supporters rather than members, together with a reduced reliance on certain forms of voluntary funding, will present parties with fewer constraints on their ideological positioning. Finally, this scenario will differ from the two Westminster Models in its reflection of the changing party systems in Britain. As Blau shows in Chapter 14, the changes brought about by devolution, alternative electoral systems and the growth of the European dimension have helped create or at least cemented several party systems within the United Kingdom. This diffusion will continue with a number of consequences. First, non-Westminster parties, or parties for whom Westminster is not the primary focus, will play a greater role both in relations with the Electoral Commission and in the distribution of state monies. A beginning of this process has already been proposed by the Phillips review. Here the distribution of enhanced state money is to be based on support not only at Westminster elections, but also at the devolved level (albeit at a lower rate). Second, UK-wide parties may develop further distinct identities at different parts of the country in response to not only the growing prominence of non-national legislatures, but also the different strategies required to fight elections under different electoral systems.

The Cartel Plus Model The Cartel Plus scenario represents the most significant change from the status quo. In effect, British parties would be transformed in a way that is consistent with the cartel model of parties as identified by Katz and Mair (1995) and indeed, would take that principle even further. In terms of party finance, the changes will be many. First of all, there will be

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significant changes to regulation; in effect, three of the aspects that currently characterise regulation will be manifestly altered. First, party contributions will be restricted both in size and, possibly, in source. A cap on contribution size will be introduced, and it is feasible that the sources of contributions will be further restricted. This will reflect concerns about institutional contributions from companies and trade Unions and their potential to seek undue influence in return for their contributions by virtue of the sanctions that they are able to employ. Second, by way of compensation for the restrictions on contributions, and reflecting the realist agenda outlined in the Pragmatic Dispersal model, there will be extensive state funding available – this will be supported by all the major parties. Third, there will be a removal on expenditure restrictions in respect of advertising on broadcast media. This will reflect a growing human rights agenda pursued through the legal constitution. Existing bans on advertising through broadcast media will be challenged by way of their being an infringement on freedom of expression. This will also reflect the increasingly redundant ban on broadcast-media advertising, given that internet advertising will not be banned due to the impossibility of enforcement. It will, in addition, reflect growing pressure from broadcasters to receive payment for advertisements as opposed to providing airtime for party political broadcasts, as well as a growing frustration with the need to sacrifice broadcast time outside of conventional commercial breaks. Parties too will seek to be permitted to advertise through this medium rather than utilise party political broadcasts, that are restrictive both in terms of their format and when they are shown. Related to the these changes in party-finance regulations, the Electoral Commission will become a highly proactive regulator with significant powers to impose penalties on parties or candidates who transgress the stricter rules on party finance, made more stringent by the distribution of significant levels of state funding. This proactive stance will, in effect, make the Electoral Commission wholly independent of the political parties. And, as a result of this and the growth of state funding, the focus of Electoral Commission work will cease to be so Westminster focused. In effect, there will be significant, if not complete, incorporation of non-Westminster-based parties into the work of the Commission, reflecting also the growing importance of non-Westminster elections. The tightened regulations and more proactive stance of the Electoral Commission is likely, however, to lead to more breaches of electoral law – some by design, but most unintentional. The outcome of this will damage public confidence and lead to more stringent regulations. In terms of traditional membership and activity, the decline will be accepted in the same way as in the Pragmatic Dispersal scenario. This will have a number of effects. First, as with the Pragmatic Dispersal model, the distinction between supporter and traditional member will become ever

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more blurred. As a consequence of these changes and the high level of state funding, there will be increasing levels of elite domination in parties as a function of, first, a less traditional membership, and second, the removal of the financial incentive for leaders to take heed of members and supporters’ views.

How plausible are each of these scenarios? The four scenarios presented here are all plausible to varying degrees. Two, however, are more plausible. The two least likely scenarios are the Westminster Model and the Cartel Plus model. The Westminster Model is less likely to occur principally because the drivers of change are against it. In effect, it already represents a small retreat from the current position. The secular decline in levels of membership and traditional activity is unlikely to be reversed to the degree that would be necessary to sustain this approach of membership, activity and finance. Moreover, in the light of the reform of the Electoral Commission, the extent to which the Commission could be politicised is likely to be very limited. With regard to Labour’s relationship with the trade Unions, that is likely to evolve at the very least. In Gordon Brown’s first speech as Labour leader, he indicated that the party’s relationship with the Unions would change. Finally, the focus of politics and party competition is moving further away from Westminster, so a model which essentially reflects pre-devolution Britain is unlikely to prevail. The second less likely scenario is the Cartel Plus model. Some aspects of it are likely to occur – a decline in traditional membership and an increase in central party dominance. However, there are significant barriers to the extent of changes in the area of party finance and electoral law present in this scenario. First, whilst caps on contributions may well be introduced, a possible consensus on extensive state funding is perhaps more difficult to predict. Whilst the Phillips review (2007: 17) advocated some extension of state funding, the review was conscious to stress the limited financial cost of the main scheme and proposed cash-limits on the subsidiary scheme designed to generate small-scale contributions from supporters. Second, whilst the Electoral Commission is likely to be more proactive than has previously been the case, the likelihood of a regulator in the areas of politics being completely independent from the wider political scene is highly unlikely. Finally, the case for wholesale changes to electoral law in respect of broadcasting would be very difficult to sustain, not least because the cost of purchasing advertising time would be prohibitive and would impose significant opportunity costs should expenditure limits remain relatively low. What unites these three points, however, is that each would challenge an embedded normative institution. First, extensive state funding of the kind envisaged here would fundamentally challenge the principle of voluntarism in party finance. Second, the kind of Electoral Commission suggested here

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would provide a particularly strong challenge to the principle of ‘trust’ upon which British political life is more generally regulated. Finally, the availability of advertising on broadcast media would present a similar challenge to the principles of equity in the way elections are presented in Britain – including the principle of impartiality in the reporting of elections across all broadcasters. The two more likely scenarios are the Reformed Westminster and the Pragmatic Dispersal models. The Reformed Westminster scenario is plausible precisely because it represents relatively small and, critically, achievable steps from the current scenario. There would be no major overhaul of the basis of party finance, and the normative tradition of party activity would still be pursued. Moreover, the increasing role of the Electoral Commission and tightening of party regulations would chime with the recommendations of recent reviews. Whilst the extended role of the Commission would mark something of a move away from the ‘trust’ dimension, the focus of regulation on increasing popular participation would ensure that regulations were designed to materially assist parties and ensure that they continued to be at the core of political life. Thus, the Reformed Westminster Model is plausible because it involves little radical change, and that which occurs is within the bounds of traditional norms. However, the continued broad focus on Westminster may be harder to sustain. The Pragmatic Dispersal model is also plausible because it could occur without challenging existing drivers of change. First, the long-term decline in traditional party membership makes it much more likely that there will be a re-examination of both the role and nature of party membership and support. It could also be attractive to parties, since they would be freed from trying to promote a concept of membership that was increasingly difficult to sustain. Second, the growth in support for more extensive state funding would also represent a more natural progression – not imposed by a regulator, but advanced through economic necessity. Third, the limited incorporation of non-Westminster focused parties would represent both a recognition of the changing patterns of party competition in Britain, but also the continued primacy (albeit somewhat weakened) of Westminster. Finally, the continuation of the Electoral Commission’s co-operation with parties would continue a broad tradition of political regulation in Britain.

Conclusions Overall, party membership, activity and finance in Britain are likely to evolve rather than regress, or be subject to fundamental revolution. In this respect, a combination of the Reformed Westminster and Pragmatic Dispersal scenarios point towards likely changes. Some aspects are inescapable – the decline in traditional membership and the growing importance of non-Westminster politics. Equally, following all the reviews of party funding, it seems highly

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unlikely that there will not be some changes in legislation, together with an enhanced level of regulation. Parties will be regulated to a greater degree that ever before, but it seems unlikely that the Electoral Commission will be able to distance itself from the parties in quite the way that the legal constitution would expect. These changes will have impacts not only on parties, but also on other policy areas. First, the likely imposition of a lower national spending cap will have consequences for elections. The reduction will create even greater opportunity costs than when PPERA was introduced, and the rational response of parties (as is already occurring) is to focus the bulk of their campaign spending and resources on target seats. This will renew unease with the first-past-the-post (FPTP) electoral system, since increased targeting has the potential first to produce even more disproportional election results, and also leave voters in non-target seats virtually ignored. Second, electoral administrators will emerge with a significantly larger workload. Third, the ban on advertising on broadcast media by parties will raise significant issues in the areas of human rights legislation – especially if major parties and ‘third parties’ challenge the ban. Finally, the effectiveness of party-funding regulation will have a significant bearing on levels of trust not only in political parties, but also in other institutions.

Notes 1. The data displayed in Figures 15.1 and 15.2 are produced from surveys of election agents at each of the four general elections from 1992 to 2005. With one exception, there were representative responses for all parties in each election. The exception is the case of the Conservatives in 2005 so that results based on these responses should be treated with caution. 2. To create the index of traditionalism the datasets covering surveys of agents from all four elections were pooled and relevant variables entered into Principal Component Analyses. This produced a single component with associated factor-scores. As in previous analyses (see, for example Denver and Hands 1997; Fisher et al., 2006), the factor-scores have been standardised around a mean of 100, to allow for ease of interpretation, both between parties, and over time. 3. Using an F test, the overall means for each year are significantly different from one another.

16 Parliament: Emasculated or Emancipated? Meg Russell

Context Compared to many of the areas of the constitution covered in this book, parliament has on the face of it seen relatively little change in the last ten years. Two of the key unfulfilled pledges in Labour’s 1997 manifesto related to parliament and its reform. The manifesto had promised a two-stage reform of the House of Lords, with the first stage being the removal of the hereditary peers, and the second stage leading to ‘a more democratic and representative’ second chamber. Only the first of these has yet happened. It also promised a referendum on changing the voting system for the House of Commons. But – as discussed in Chapter 14 – there has been no progress at all towards this end. Meanwhile, there has been some internal reform of the Commons, in particular through the Modernisation Committee created in 1997, but the shape of this has frustrated many reformers (see for example Gay 2005b; Kelso 2007; Kennon 2000). Parliament is, however, a prime example of where seemingly small reforms can have large unintended consequences, and how reform can develop its own momentum. The House of Lords, which some claimed would be neutered by the removal of hundreds of opposition party members in 1999, has in fact become more assertive since its reform. Furthermore, this assertiveness seems to be growing (Russell and Sciara 2006a, 2007, 2008). Although the chamber continues to be unelected, its members feel more legitimate thanks to the removal of the hereditaries, and to the resulting change in party balance. This gives no party an overall majority, handing the balance of power to the Liberal Democrats and Crossbench independents. At the same time, there have been signs of growing assertiveness in the House of Commons. The oversized majorities of the first two Blair governments made it difficult for the whips to maintain discipline, as it was clear that a rebellion of even several dozen backbenchers would not result in defeat for the government. Consequently, rebelliousness grew and reached unprecedented levels in the 2001 parliament (Cowley 2002, 2005). This 267

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clearly is not a result of constitutional reform, but of other political forces. Various other changes have fuelled this backbench independence. Ever since 1979 the select committees have been growing in profile and stature, and they have gradually gained greater resources which can be deployed on their inquiries (Norton 1998; Seaward and Silk 2003). As far as possible the committees operate by consensus, which encourages less partisan behaviour. In more recent years MPs may also have been responding to the political environment outside Westminster, where voters’ allegiance to political parties is weakening (see Chapter 15). Some similar factors apply to the House of Lords, whose recent assertiveness could be seen in part as a response to the seemingly unchecked power of the Blair governments. With the official opposition in a weak position in the House of Commons, new sites of resistance grew up both in the Lords and on the government backbenches. But post-2005, with the government’s majority reduced, there has been little sign of this resistance declining. So parliament has changed in important ways in the last ten years, but still remains largely ‘unreformed’. There is continued pressure for further progress. In particular, Lords reform was seen as one of Tony Blair’s great failures, and continues to pose a challenge. During Blair’s premiership there were no fewer than four white papers on Lords reform (each taking a rather different position) along with a Royal Commission, two joint Parliamentary committees, and two votes in parliament on a range of composition options (for a discussion of reform attempts see Norton 2004; Russell 2005). All of these failed to find a solution that could garner adequate support. The debate has become polarised around the question of whether the chamber should be appointed or (largely) elected. Votes in the House of Commons found support in March 2007 for an 80 per cent or 100 per cent elected House, and this was endorsed in a white paper in 2008 (Ministry of Justice 2008b) which followed extensive talks between frontbench representatives of the parties. However, views remain divergent on the Labour and Conservative back benches while some issues, notably the electoral system for a reformed second chamber, remained unresolved in the cross-party talks. The opposition parties have always been happy to point to the government’s failure in this area. The Conservatives’ attitude towards reform has been ambivalent, though their official position has for some time been support a largely or wholly elected House. The Liberal Democrats have more wholeheartedly favoured such an option. Lobby groups have built up outside Westminster calling for elections to the Lords, and many MPs have been convinced, though a strong anti-election also exists. The issue of PR for the House of Commons has been less visible than that of Lords reform in recent debates, as discussed more fully in Chapter 14. However it is generally the same forces that support this as that favour elections to the House of Lords. These include the Liberal Democrats, certain elements in the Labour Party, and pressure groups such as UnlockDemocracy

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(formerly Charter 88) and the Power Inquiry (2006). Both reforms are seen as a means of bringing greater pluralism to Westminster, and ending the hegemony of single-party government in the Commons. Both would instead require broader consensus and negotiation with other parties. This undoubtedly reflects a principled commitment by many reformers to consensus democracy (Lijphart 1999). But it would also clearly be in the partisan interest of the Liberal Democrats, who would far more often find themselves in a pivotal political position. There are many other issues on the parliamentary reform agenda. One, of particular interest to the Conservatives, is the question of ‘English votes on English laws’. Again there is a clear partisan interest, though no doubt mixed with genuine principled concerns. If Scottish MPs were barred from voting on English matters, this could have a significant impact on parliamentary outcomes under a Labour government with a small majority. A Labour government with a large majority would find itself largely unaffected (as we have seen in recent years), while a Conservative government that had won a majority across the UK might find its life made slightly easier if Scottish MPs were excluded. But a small Labour majority could disappear altogether if this rule were to be enforced. Given the self-interest involved, it is almost inconceivable that this reform would be implemented by a Labour government, but it would probably also be a low priority should the Conservatives win a majority. It therefore appears unlikely (Russell and Lodge 2006). This potential reform is explored in more detail in Chapter 5, so will not be further considered here. When Gordon Brown took over the premiership he was eager to emphasise the importance of parliament. His first statement to the House of Commons set out a range of measures whose stated intention was to ‘rebalance power between Parliament and Government’ (Ministry of Justice 2007c: 11). These included giving the House of Commons control over its own dissolution and recall, and over sending troops to war, putting the civil service on a statutory footing, and giving greater powers to select committees to oversee public appointments. Most of these measures are due to be implemented in the Constitutional Renewal Bill. All of them represent further piecemeal progress towards a stronger and more independent parliament. This direction of travel, towards greater power for MPs, and particularly backbenchers on a cross-party basis, is generally welcomed by reformers. It is seen as broadly in line with the mood of the country, which is moving away from putting trust in single-party government supported by a cohesive parliamentary majority on the Traditional Westminster Model.

Drivers of change The main drivers of change in this area over the next ten years are electoral outcomes. After each election parliament will be fundamentally affected not

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only by which party (or parties) is in power, but by the electoral arithmetic inside the House of Commons. This may lead to a majority government of either Labour or Conservative, a coalition government – led by either party with the Liberal Democrats as partners – or a minority government where the support of the Liberal Democrats (and perhaps the minor parties) is needed by Labour or Conservatives to get their policies through the Commons. In any circumstances where the Liberal Democrats are able to exert policy influence, they will seek to achieve their objectives with respect to parliamentary reform. That is, they will press for either Proportional Representation (PR) for the Commons or elections to the House of Lords on a PR basis, or both. For both main parties the first of these is by far the more difficult to deliver. The Conservatives remain strongly opposed to PR, while Labour is split with the majority probably against. Given the public pronouncements of Labour and the Conservatives, Lords reform is more negotiable, but nonetheless difficult. All serious proposals prior to 2008 (including the Royal Commission’s report and various white papers) suggested that elections to the Lords should use PR on regional boundaries. But the Conservatives are also hostile to any non-majoritarian systems in this setting – as demonstrated by the 2008 white paper (Ministry of Justice 2008b). The Liberal Democrats are therefore more likely to win Lords reform than they are to win electoral reform, but are more likely to gain satisfaction from Labour than from the Conservatives, as only a PR system would be acceptable. To some extent this and electoral reform may be seen as interchangeable, because both deliver a more entrenched policy influence to the third party. In negotiations, the Liberal Democrats may thus be prepared to settle for Lords reform as a proxy for electoral reform. As discussed later in this chapter, one may in any case lead to the other. With respect to PR, the best the Liberal Democrats could hope for is a promise of a referendum, which could of course be lost. This further suggests that a deal is likelier on Lords reform. In the event that the election in 2009 or 2010 results in a hung parliament, there is therefore likely to be some negotiation about the major aspects of parliamentary reform. The same is obviously true of the subsequent election which under normal circumstances would fall in 2013–2014, though this would give less opportunity for changes to have fed through in the timescale that is the main focus of this book. At either point, the Liberal Democrats could seek to use parliamentary reform as a condition for either entering a coalition or providing parliamentary support to one of the other parties. The price extracted for coalition partnership might be higher, though this would also offer greater prizes to the Liberal Democrats in terms of both policy influence and ministerial office. The price they could extract for parliamentary support rather than coalition could also be high if the arithmetic made it impossible for the governing party to get its business through the Commons in any other way. The outcome of the next two general elections affects not only what reform is agreed, but also how the culture of both chambers develops. The

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culture of rebelliousness in the Commons has emerged in a period of large government majorities. Although it has not yet abated, change could be sudden and significant if a future government had a slim majority or was acting as a minority. In this case pressure on government backbenchers to vote the line would greatly increase; yet, whether they would respond positively to this pressure is not certain (see Cowley 2008). At the same time, the Lords has been assertive during the period when the Commons majority was large, but this might also change if there were more genuine opposition in the first chamber. And if the government in the Commons were a coalition between the Liberal Democrats and one of the two larger parties, this same coalition could in practice enjoy a majority in the House of Lords. This would considerably change the dynamic between the two chambers. The culture of both chambers is affected not only by the political arithmetic within them, but also by public opinion. If the government is popular, members of both chambers feel less justification for opposing its policies. However when the government is pushing through policies that lack popular support, both MPs and peers are more prepared to speak out. This is the pattern that we saw during the Blair years. Therefore, for example, if David Cameron were swept to power in 2009/2010 on a wave of popular sentiment, it would probably be some time before either peers or his own backbenchers began to make it difficult for him to achieve his policy agenda. There are other factors which may drive demands for reform. The most obvious, based on the Blair years, is a new scandal about appointments to the Lords. The ‘cash for honours’ fiasco primarily fed demands for elections to the second chamber. Further such controversies have the potential to do the same, or at least to focus attention on the need for reform to the appointments process. Should the Liberal Democrats find themselves in a more powerful bargaining position within the House of Commons, they would almost undoubtedly press for procedural reforms within that institution. The Commons remains strongly geared to the ‘old politics’ of a single-party government and singleparty opposition. This has many frustrations for the third and minor parties. The government retains much control over the parliamentary agenda, and it is principally just the main opposition that has recognised procedural rights. Insofar as there is negotiation, this largely goes on between the Labour and Conservative chief whips. The Liberal Democrats would like this bilateral bargaining to be broadened and made more transparent through the creation of some kind of ‘Business Committee’ on the European model, which would involve all parties sitting around the table to negotiate the parliamentary timetable. Further symbolic changes might include, for example, allowing Liberal Democrat spokespeople to speak from the despatch box. There would also be a case for negotiating greater parliamentary allowances for the third party, both in the Commons and in the Lords. In the Lords this could have a knock-on effect for the Crossbenchers, who are currently very under-resourced.

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In a parliament where no party had an overall majority in the Commons and no coalition was formed, there could be pressure for other procedural reforms. For example a significant change was made to the legislative process in 2006, when the Modernisation Committee recommended a reform of the standing committee process which would make evidence-taking on bills the norm (see House of Commons Modernisation Committee 2006). This recommendation was accepted by the House, and has slowly come into effect since the middle of the 2006–2007 session. It has the potential to significantly improve the process and to make the new ‘public bill committees’ far more influential than their predecessors. In a future parliament with no government majority, the government would not have a majority on any committees, including not only select and bill committees but also the Procedure and Modernisation Committees. This could well lead to pressure for further reform. Changes could bring greater resources for public bill committees, or even an eventual move to specialist legislation committees shadowing government departments in the same way as select committees.

Constraints on change As already indicated, the views of the two largest parties act as one kind of constraint on change. A further constraint is public opinion, as there is no major pressure for electoral reform for the Commons, and this could scupper any referendum. Public opinion could also be a factor in debates on Lords reform. Polls consistently show that a majority of the public support at least a majority elected House,1 but it is also fairly clear that this support is shallow. For example a poll in the Times in 2006 found that threequarters of the public supported a ‘more legitimate’ largely elected house, but three-quarters also supported an ‘expert’ and ‘independent’ chamber that was largely appointed.2 An Ipsos MORI poll commissioned by the Constitution Unit in 2007 asked respondents to choose between different desirable features in the Lords, and found that various factors were considered more important than presence of elected members: including careful legislative scrutiny and presence of independent members.3 Until recently, public opinion has to some extent been reacting against the government’s hostility to election. If the government started to pursue an elected House we might well see more news stories about threats to the chamber’s independence and expertise. In these circumstances the tide of public opinion possibly would start to change. The failed referendum on an elected assembly in the North East of England in 2004 shows that opinion can turn against reforms creating ‘more elected politicians’. As already indicated, a tight parliamentary outcome could act as both a driver and a constraint on change. On the one hand, reform would find its way up the political agenda. But on the other, party cohesion could become

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much tighter than we have seen in the last 12 years. Here it is important to distinguish between the situation under a minority administration and a coalition government. In the first, there would be more negotiation in the open, across the chamber of the House of Commons, than is currently the case. In the second, there would also be more negotiation between the parties, but this would go on largely behind the scenes. Indeed, because one of the opposition parties would become subject to collective responsibility, the level of parliamentary – as opposed to inter-party – bargaining would actually decline. This could affect the Lords as well as the Commons.

Matrix This chapter has so far focused on two key dimensions of future change. The first is the extent to which power remains concentrated in the hands of a single party, as has been the tradition at Westminster, versus the extent to which it becomes diffused between parties. The second is the extent to which parties retain tight control over their parliamentary members versus the extent to which members act independently in a less partisan fashion. These dimensions are separate but interrelated. The two dimensions are illustrated in Figure 16.1. The north–south axis, representing the concentration versus dispersal of power, is consistent with that in Chapter 1 which sets out the overarching matrix for the book. In our case this should be interpreted as meaning partisan concentration or dispersal of power. The east-west axis represents the independence versus


‘Old Westminster’

‘Freedom within Constraints’

Party cohesion

Independence

‘Party Carve-up’

‘Parliamentary Reformers’ Nirvana’

Dispersal of power Figure 16.1

Four scenarios for parliamentary evolution

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partisan cohesion dimension. This clearly creates four quadrants, which we name Old Westminster, Freedom within Constraints, Party Carve-up, and Parliamentary Reformers’ Nirvana.

Plausibility of the four scenarios Old Westminster The natural place to start is Old Westminster. This is characterised by concentrated single-party control and high party cohesion. It is consistent with the conventional view of Westminster in the post-war period and is the basis of the old ‘Westminster Model’ (Lijphart 1999; Wilson 1994). This model probably best described the system in the 1950s, when the third party was weak and rebellion on the government benches was relatively rare (Norton 1975). In this period the House of Lords was also probably at its weakest. Following the landslide election victory of the 1945 Labour government, the ‘Salisbury convention’ was agreed between Labour and the Conservatives, clarifying that the House of Lords would not seek to block government manifesto measures. Life peers were not introduced into the Chamber until 1958, before which the hereditary House was struggling for survival (Walters 2003). The period since the 1950s, and particularly since the 1970s, has seen a gradual drift away from this model. The 1970s brought the rise of the third and minor parties, and a brief period of minority Labour government. By the 1980s the House of Lords was showing rather more vigour, although it remained Conservative-dominated and relatively powerless against the Thatcher governments (Shell and Beamish 1993). Over the same period there has been a gradual decline in party cohesion in the House of Commons (Cowley 2002, 2005; Norton 1980). The 1999 reform of the House of Lords has also provided a new platform for influence by the third party, in partnership with the main opposition party (Russell and Sciara 2007, 2008). The past ten years have therefore seen a shift southwards and eastwards on the diagram. They may even have seen a shift into a different quadrant, as discussed below. However, at this stage, our interest is in the possible direction of movement in the next ten years or so. It is hard to see the circumstances in which we could see movement back towards Old Westminster. This would require the electorate to vote in a more polarised way for the two main parties, to the exclusion of the third and minor parties, in a way not seen since the late 1960s. Alternatively, greater single-party hegemony could be recreated by the governing party gaining a majority in both chambers. However, given the current share of seats in the House of Lords, this would require the Prime Minister to appoint a huge number of peers of his or her own party, which is theoretically, but probably not politically, possible. A similar result could be achieved through a reform of the House of Lords in which it was elected by first-past-the-post (FPTP). This is the Conservative

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Party’s official position, but seems extremely unlikely even if a majority Conservative government were elected. For one thing, David Cameron has made it clear to his own peers that Lords reform is not a high priority for him. He is said to have indicated that this is a ‘third term issue’ (see Howe 2007). Second, if a Conservative government did seek to proceed with such a reform, it would be highly controversial. The purpose of a second chamber is to act as a check on the first, and a reform which handed a majority in both chambers to the government would be unlikely to win popular support. We can conclude therefore that an existence in the first quadrant is plausible, but that this lies in Britain’s past, not its future. A return in this direction is extremely unlikely. Freedom Within Constraints If there has been a shift to a different quadrant over the last ten years or more, it is probably to the one entitled Freedom within Constraints. In this model, power lies principally in the hands of one party, but members of parliament exercise significant independence in going about their parliamentary business. This is consistent with declining party cohesion, as described above, and also with a strengthening of parliamentary committees that operate on a cross-party basis. It is a matter of judgement when the system could be said to cross the line between the left and the right halves of the diagram, but there has certainly been some shift in this direction. There is also a question, discussed in the next section, about when the system could be said to cross the horizontal axis and shift from concentrated to diffused power (it might be argued that reform of the Lords since 1999 has already pushed Westminster over this line). But given that Britain continues to be governed by a single party forming a majority in the House of Commons, it now probably resides somewhere on the west side of the north-east quadrant. All things being equal, the pressures over the next ten years would continue to be eastwards and southwards. That is, towards weaker party cohesion and greater party pluralism. This is the desired direction for most reformers who want to see a stronger and more independent parliament where it is necessary for government to build broader support in order to achieve its policies. However shifts eastwards and southwards will often be in conflict. We return to this in the next section. Remaining in the Freedom within Constraints quadrant, and indeed to shift more decisively into it, requires the degree of independence from party amongst members of parliament to remain stable or to grow. The electoral circumstances which are most likely to bring this about are a continued period of single-party majority in the Commons. This could obviously occur under either Labour or the Conservatives. If Labour continues to enjoy a comfortable majority in the House of Commons in future years, it is very likely that the levels of backbench independence which have become established since 1997 will continue

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and indeed become more entrenched. While Labour entered government deeply concerned about the dangers of appearing divided, and had famously developed a ‘control freak’ tendency, attitudes towards internal dissent have tended to relax over time. It is therefore not unusual for Labour select committee chairs to question government policy, just as it is not unusual for Labour MPs and peers to vote against the party line. The establishment of public bill committees, which will take evidence from outside experts in public, will further encourage independent questioning of policy by MPs. This now also, however, can expose non-expert MPs and their ignorance of policy detail in the face of expert witnesses. It could therefore lead to pressure over time to create specialist legislation committees. As things stand, Britain is out of step with all other parliaments in Europe in delegating detailed legislative scrutiny to ad hoc and non-expert committees (Mattson and Strøm 2004). Allowing more backbench members to establish expertise through consistently exposing them to legislative scrutiny in one policy area would have the potential to further loosen party ties. The same might be said of some of the new powers feeding through to the select committees: questioning of new senior officials, and even judges, will give MPs greater independent policy clout. All of these trends are likely to continue if the environment at Westminster is otherwise stable through the continuance of a Labour majority. If instead it is the Conservatives that win a majority in 2009/2010 and/or 2013/2014, the direction of travel will be similar but not identical. Initially Conservative MPs may be more loyal than Labour backbenchers have been in recent years, particularly if the new government has widespread popular support. But there are clearly distinct currents of opinion within the Conservative Party which may make it difficult for a Conservative Prime Minister to maintain unity within the party group for long. More importantly, the party has committed itself to a series of reforms aimed at strengthening the House of Commons. The Conservative Democracy Taskforce (2007a, b), chaired by Ken Clarke, issued two reports containing moderate proposals for parliamentary reform. If implemented, some of these reforms would boost parliamentary independence. For example the Taskforce recommended that the chairs of select committees should be elected by the House of Commons as a whole. This is designed to take their appointment out of the hands of the whips, but would also give chairs a broader mandate which could create greater confidence and outspokenness. Other reforms proposed, such as providing more time for select committee reports to be debated and giving committees more formal power, would also boost the ‘cross-party’ mode of operation which has traditionally been weak at Westminster (King 1976). Following the next two elections the pressure for Lords reform will not go away. Both main parties will almost certainly include a pledge in their 2009/2010 manifestoes to continue with reform, following the 2008 white paper. However both parties remain internally split on the matter, and there is no guarantee that reform will proceed. The Conservatives will probably

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repeat their commitment to a largely elected house, but there are many Conservative MPs who remain opposed to such a change, and the party’s peers are particularly hostile. A Conservative government would doubtless find, particularly after 12 or more years out of office, that it had other priorities. The next Labour manifesto will probably also include a commitment to a largely elected House for the first time. This solution has increasing support among Labour MPs, though far less so among Labour peers. There also remain many opponents on the Labour benches in the House of Commons. If a Labour government sought to proceed with reform it would need to placate these critics by introducing greater limitations on the chamber’s powers. This would, however, be controversial. There are no signs that the British public is uncomfortable with the upper house being able to interfere in government policy, indeed, if anything, quite the reverse.4 Any attempt by government to weaken the Lords could be presented as seeking to undermine parliamentary accountability, and could prove electorally damaging. Although clearly there are attractions in introducing democracy to the House, diminished powers may not be a price that the public is willing to pay. If a future government does seek to embark on a programme of reform, and introduce a bill, this could get a bumpy ride. There is much to disagree over – not just the fundamentals of composition and powers, but also the details such as the electoral system, the length of terms that members should serve, and whether terms are renewable. Even if a bill is introduced, it is not inconceivable that it could fall apart in parliament, as did Harold Wilson’s reform in 1968 (Morgan 1975). What is more likely is that ministers would see the danger, and find new ways of kicking major reform into the long grass. Should this situation continue for five or more years, pressure might grow for more minor reforms, such as a clean-up of the appointments process putting the House of Lords Appointments Commission on a statutory basis, and allowing members to retire from the chamber. Under majority government if reform does not proceed, or even more so if there are minor reforms of this kind, the House of Lords is likely to continue to strengthen in gradual ways. The changes since 1999 have come about not only through greater confidence amongst existing members, but also through the constant addition of new members who enter the chamber with different attitudes and expectations. After his 10 years in office more than half the members of the House of Lords had been appointed by Tony Blair. By 2020 only a small minority will have served in the pre-1999 House. The chamber will therefore comprise almost entirely of members who expect it to act assertively. The really major change in the perception of the House would come if the Conservatives entered power, and Labour and Liberal Democrat peers were able to combine for the first time to inflict defeat on controversial policies. If this happens at some point before 2020, the old image of the House of Lords as a sleepy Conservative institution would finally be shattered.

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So in conclusion, the second quadrant is attainable and would represent a continuation of the direction of recent travel. A stable majority in the House of Commons for either main party is likely to see further developments in this direction. Parliamentary Reformers’ Nirvana The third quadrant is the one into which most reformers really want to see parliament move. This involves not only greater freedom from the whips but also increased party pluralism. It would mark the end of single-party dominance at Westminster, and instead create an environment where more bargaining is required between the parties, and there is therefore a greater degree of consensus over policy. As with the previous case, it is questionable whether the changes over the last ten years have already seen Britain creep over the line into the upper reaches of this quadrant. This could be argued to have been the result of the 1999 Lords reform. Whereas previously the House of Lords was dominated by the Conservative Party, the removal of most of the hereditary peers created a far more politically balanced chamber in which no party holds a majority. Since 2005 the Labour Party has been the largest party in the chamber, with the Conservatives and Crossbenchers each holding a similar, if slightly smaller, number of seats. Two major changes have resulted from this reform. The first is that the Liberal Democrats and Crossbenchers are now in a pivotal position, in a way that was not the case before. In the period 1999–2005 the government suffered 283 defeats in the chamber, but the Conservatives were able to inflict defeat only 12 times without Liberal Democrat support (Russell and Sciara 2007). This means that both government and opposition now need to court the third party, despite its relative powerlessness in the House of Commons. The Crossbenchers are also potentially influential, and need to be listened to, though they more rarely numerically influence the outcome of votes, due to low turnout and not all voting the same way (ibid.). The second important change following reform is the greater confidence felt by members of the Lords. Surveys of peers show that a large majority consider the chamber to be more legitimate than it was before reform, and this also helps account for its greater assertiveness.5 Their view is shared by a majority of Labour and Liberal Democrat MPs, and an analysis of media coverage of the Lords post-1999 shows that it is being presented in an increasingly positive light (Russell and Sciara 2006b). Hence while the old Westminster system remains in place in terms of one party continuing to govern alone, there is already significantly more pluralism in the parliamentary system than there was in 1997. Those who embrace further Lords reform to introduce an elected element want to see further movement in this direction (though it must be said that few as yet are aware of the extent to which the dynamics have been changed by the first stage of reform). It is widely accepted, by proponents

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and opponents of reform alike, that a largely or wholly elected House would be more assertive still, and therefore act as a greater check on the executive. If the mere removal of the hereditary peers, leaving a still wholly unelected house, has caused such a change, the existence of members feeling that they have democratic legitimacy would be certain to further strengthen the chamber’s confidence to use its powers. If elections were conducted using a PR system, as is most likely, this would cement the influence of the third and minor parties. As stated above, Lords reform is difficult, and there are conflicts within as well as between the two largest parties which may see it stall if future elections result in single-party governments. But if either election results in a hung parliament, it is likely to be a key demand of the Liberal Democrats. It is also the concession most likely to be offered (particularly by Labour). Of course in this situation Britain would have already moved into the Parliamentary Reformers’ Nirvana quadrant, due to the greater pluralism within the House of Commons. If Lords reform went on to be agreed following a hung parliament in 2009/2010, the first elections to the new second chamber would probably take place alongside the general election after that. By 2020 the chamber would therefore still be in a transitional state, as most proposals to date have suggested that it be elected in parts. It would therefore require one or two more general elections before the final destination was reached. Nonetheless the new culture of the elected House would soon begin to be established. So a hung parliament, followed by determined negotiations between the Liberal Democrats and Labour, could see Britain finally and decisively entering Parliamentary Reformers’ Nirvana. Indeed it is possible that the dreams of the reformers could be completely fulfilled in this scenario, as PR for the Commons could follow Lords reform. This would probably not occur within our time period but at some later date. Should the House of Commons continue to be elected on FPTP while the second chamber was elected using a PR system, we could expect to see far more frequent and vigorous disputes about the relative legitimacy of the two parliamentary chambers. At this point Britain’s parliamentary system would look very much like that in Australia, where the House of Representatives is elected using the Alternative Vote, while the Senate uses a proportional system. Here the Senate for most of the past 25 years has been controlled by minor parties and independents, while the lower house enjoys single-party majorities. This results in an almost permanent debate about the rights of the second chamber to block policy, with the governing party claiming it has a mandate to govern as a result of its majority in the lower house, while the minor parties argue that they have a mandate to oppose. These ‘mandate wars’ are familiar to Australian voters and academics alike (Goot 1999). Essentially such arguments focus on the competing legitimacies of different electoral systems. There is no single objective way of judging the superiority of one

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electoral system over another – the proponents of majoritarian and proportional systems value different features which cannot be directly compared (Blau 2004b). For example the constituency link and stable government are valued by the proponents of FPTP, while proportionality and concern about ‘wasted votes’ are priorities for those favouring change. The establishment of an elected House of Lords, frequently challenging the government as a result of its electoral legitimacy, would result in a continuous conversation about the merits of different systems. It is unpredictable who would win this argument. In Australia the system has remained stable despite disagreements over 25 years, and the presence of the Senate has not resulted in significant pressure to reform the voting system for the lower house. This leaves singleparty government continuously checked by other political forces, without third parties having the same power that they would in coalition: that is, essentially a halfway house between majoritarian and consensus government. In Britain, however, the situation is likely to prove to be less stable, as a result of the long-existing pressures for electoral reform. At the very least, this would make the existing electoral system for the House of Commons even more isolated and unstable than it became following the establishment of PR at the devolved level (Dunleavy 2005). The argument could well, therefore, ultimately be won by those favouring proportionality for the House of Commons as a knock-on effect of Lords reform. In one respect this sequence of events could be seen as resulting in the Parliamentary Nirvana of all Nirvanas. Not only would the House of Lords be elected on a proportional system, but also the House of Commons. On the face of it, power could hardly be more dispersed. But there is a paradox in these arrangements, in that pursuing partisan pluralism for both chambers results in them becoming more similar, or even indistinguishable, and consequently reduces the friction between them. In just the same way as two chambers elected on FPTP would result in a greater concentration of power, two chambers elected on similar proportional systems would mean one was not a strong check on the other. Indeed, as could happen even under the current arrangements, a coalition government in the House of Commons might well find that it had a majority in both chambers. Therefore a shift ostensibly southwards in our diagram could prove to have an elastic tendency and actually result in a northwards bounce. If there is a paradox about north–south movement there is perhaps an even greater one with respect to movement along the east-west axis. In the quest for Parliamentary Nirvana, reformers seek to move to a position where partisan control is more diffuse and party cohesion is also weaker. However experience in other democracies suggests that these two characteristics sit uncomfortably together. There are reasons why party cohesion may be expected to be higher under PR systems. This is in part because the selection of candidates in such systems is necessarily more centralised than it currently is in the United Kingdom. Under FPTP all the British parties devolve significant responsibility to local constituencies for the selection of

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their candidates. In proportional systems using lists in larger geographical areas, the central party tends to have more control (Norris 1996).6 This means that elected members are more dependent on the approval of party leaders to retain their seats, and can therefore take fewer risks in straying from the party line. An additional reason why party cohesion tends to be higher under proportional systems is that the kind of oversized single-party majorities enjoyed by Tony Blair from 1997 to 2005 simply cannot occur. Instead whipping will necessarily be tight in times of minority governments or narrow majorities. Again, ironically, an apparent move towards Nirvana may result in a boomerang effect which shifts the dynamics of parliament to the west of our diagram. In conclusion, there will be many pressures in the direction of the quadrant labelled Parliamentary Reformers’ Nirvana, but like all Nirvanas this may prove unattainable. Any journey to the elusive south-west of our diagram may prove to be a short one, after which Britain could find itself moving into the final and probably least desirable quadrant: that of Party Carve-up. Party Carve-up This quadrant is characterised by a diffusion of powers between the parties, coupled with strong party cohesion. As indicated, optimistic moves towards Nirvana could inadvertently end here. There are various ways in which there could be movement in the direction of greater partisan diffusion of power. Put simply, these exist in the Commons and the Lords respectively. In the Lords the diffusion of power to date would be accelerated by a move to an elected House. However, it is generally accepted that a move to elected members would result in some reduction in independent behaviour. The extent to which this was the case would depend very much on the fine detail of the system. The Royal Commission (2000), has suggested that members be elected to the upper house for non-renewable terms and this was endorsed by the white paper coming out of the cross party talks (Ministry of Justice 2008b). However this is a disputed principle, as some feel that recall before the electorate is an essential element in a democratic system (see for example Levitt 2007). Similarly the Royal Commission and the government have proposed that members of the second chamber serve long terms of office of 12–15 years, but this principle has also been disputed. The current situation where members of the House of Lords are put into the chamber for life and cannot be removed (except by explicit statute) provides the extreme case of freedom from vengeance by the whips. Any system of election would result in some reduction in freedom of members, due to accountability to the electorate. But PR elections where there was a possibility of re-election could see a move to the opposite extreme to that we have now, with greater dependence on party machines. It is also likely that the growing importance of the chamber in itself will result in greater pressure within the parties for cohesion, even without further change. Already Labour

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and the Liberal Democrats have introduced stricter pre-screening of members to try and ensure reliable attendance and voting – as a result of the delicately balanced arithmetic in the Lords, and the newly enhanced opportunities there for changing policy. If the chamber becomes an even more powerful site of negotiation between the parties it is likely that this degree of control will further increase. In the House of Commons it has already been pointed out that a government with a smaller majority is likely to result in higher party cohesion. If the result of future elections (either under the existing system or under a future system of PR) is coalition government, this is also likely to see a shift towards more trading between party leaders and blocs, rather than between the government and parliament as such. While there is a common perception that coalition government somehow empowers parliament, it is more accurate to see this as empowering additional parties. In the New Zealand parliament, for example, which moved from FPTP to a proportional system in the 1990s, party cohesion is extremely tight. The country is now characterised by minority and/or coalition government, but little bargaining goes on across the chamber of parliament – instead there is detailed bargaining between party leaders in private, with these bargains upheld by highly disciplined parliamentary party groups. Although the New Zealand parliament has many of the pluralist features desired by British reformers (such as a ‘Business Committee’), the power brokers in parliament are undoubtedly party leaders rather than backbenchers (for a recent discussion of the New Zealand Parliament see Russell and Paun 2007). Indeed, at the time when parliamentary standing orders were revised in preparation for the new electoral system, the system of voting in the chamber itself was changed. The standard method of voting is now for the whips to cast block votes on behalf of their parties, rather than members casting votes individually for themselves. It is hard to imagine that the British parliament could find itself in this position, even after several decades. But this does illustrate how reforms can have unintended consequences. In particular, how a move to greater party pluralism may result in a new centralisation of power in the hands of party elites. The degree of independence demonstrated by members of the British parliament is actually very unusual in international terms. The British public may like to characterise their parliamentarians as ‘sheep’ or ‘robots’, but in fact Britain’s peculiar electoral system has helped create a situation where members show increasing independence, and far more so than in many other parliaments (Cowley 2002, 2005). The even more peculiar second chamber is also populated by members who show unusual levels of independence. There are certainly many reasons why reform appears desirable. But it must be recognised that there are trade-offs, and adopting a ‘modern’ electoral system and ‘modern’ second chamber may also ultimately result in importing ‘modern’ levels of party control.

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Conclusions This chapter has suggested that there are two key dimensions in considering the future of parliamentary reform. Reformers not only seek to move to a situation where parliament is more plural and power is no longer concentrated in the hands of one single party, but also support moves that will encourage members of both chambers to act in a more independent and less partisan way. Both of these demands seem well in tune with the current public mood. However in their application they are likely to prove contradictory. Looking at comparative experience there is no obvious example of a modern parliament that combines a high level of party pluralism with a low level of party cohesion. A further paradox is that reformers seeking greater pluralism at Westminster focus their attention concurrently on both the electoral system for the House of Commons and reform of the House of Lords. It is unlikely that we will see movement on both of these fronts before 2020, and of the two it is more likely that Lords reform will be the one to proceed. If it does, however, this could potentially start a chain of events which would make the electoral system for the House of Commons unstable, resulting in two chambers which are very similar. This would be a rather bizarre twist, because it could actually result in a reduction in party pluralism. The greatest pluralism would be achieved in a situation where the House of Commons continues to be elected on a majoritarian system (which might be AV rather than FPTP), and the House of Lords remains proportional and therefore a site of bargaining with other parties. This is the situation Britain finds itself in following the Lords reform of 1999, although the unelected nature of the House constrains it from intervening in policy as much as its formal powers allow. As shown in Figure 16.2 this move has taken us from the Old Westminster ‘Old Westminster’

Britain 1950

Concentration of power ‘Freedom within Constraints’ Britain 1997 Britain 2008 a

Party cohesion

Independence d

b

c ‘Party Carve-up’ Dispersal of power Figure 16.2

Possible future developments

‘Parliamentary Reformers’ Nirvana’

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quadrant, probably into the quadrant labelled Freedom within Constraints (arrow a). Future changes could see us move south as a result of further Lords reform and/or a hung parliament, into the quadrant labelled Parliamentary Reformers’ Nirvana (arrow b). However this would place considerable pressure on the growing culture of independence at Westminster, and would therefore almost certainly prove unstable. Almost immediately this would be likely to be followed by movement into the last quadrant entitled Party Carve-up (arrow c). It is in this quadrant where we find most modern parliaments in Europe. If in the longer term both Lords reform and electoral reform for the House of Commons were achieved, creating similar majorities in both chambers, the movement would be to higher up this quadrant (arrow d). If we accept that there are trade-offs, it may well be that the second quadrant (Freedom within Constraints) is the best place that Britain can hope to be. No system is perfect, and it is understandable that wherever Britain finds itself there will always be pressure to improve. Changes since 1997, and indeed over the past 30–40 years, have seen a slow drift in this direction. We have developed a taste for this new pluralism and independence, but it remains limited, and so there is pressure for more. A further drift, deeper into this quadrant, is possible. But the big question over the coming years is whether Britain continues to strive for Parliamentary Nirvana, and perhaps in the search to achieve it, eventually ends up in a worse place than where it began.

Notes 1. For example, an ICM poll for the Electoral Reform Society in September 2005 found that 65 per cent of respondents favoured a second chamber that was at least 50 per cent elected, while only 11 per cent favoured a fully appointed chamber and 5 per cent a majority appointed chamber. 2. Populus poll, April 2006. 3. When asked what the two most important factors were in determining the legitimacy of the House of Lords, 32 per cent of respondents selected careful consideration of legislation, 26 per cent selected presence of independent members, and 23 per cent selected presence of elected members. Fieldwork conducted in October 2007 and funded by the ESRC. 4. An Ipsos MORI poll conducted for the Constitution Unit in 2005 found that around two-thirds of the public believed it was justified for the House of Lords to block unpopular policies. 5. An ESRC-funded survey of peers conducted by the Constitution Unit in 2005 found that 78 per cent of peers believed that the chamber was more legitimate post-1999, and a second survey in 2007 found that 77 per cent said the same. 6. The degree of central party control in selection of candidates for lists in Britain since 1997 has been controversial, including for the European elections (Wring, Baker and Seawright 2000) and the Scottish and Welsh elections (Shaw 2001).

17 Conclusion: Where Will the Westminster Model End up? Robert Hazell

Introduction This concluding chapter draws the main threads of the book together and makes a final set of predictions about likely developments in the UK constitution as a whole. It does so at a high level of analysis, focusing on the big picture rather than the detailed analysis in the preceding chapters. The chapter focuses on the constitutional architecture and the shifting balance of power between the three branches of government. The main theme is the growth in power of Parliament and the judiciary relative to the UK executive and continuing moves by the executive to delegate functions to independent bodies, in attempts to restore trust, which may prove self-defeating. The analytical question posed is where the Westminster/Whitehall model will end up, as a result of all the forecasts presented in the preceding chapters. The chapter is divided into two parts, beginning with half a dozen broad predictions and ending with a set of forecasts about the Westminster Model.

Continuing dynamism of constitutional reform The first prediction is that the constitution will continue to evolve, with big changes still to come (Hazell 2007c). This may seem a statement of the obvious, but it is one which is sometimes lost on the key political players. Tony Blair was famously blind to the consequences of the reforms he unleashed (Riddell 2006). He was startled by the effects of devolution and unaware of the wider dynamics of his constitutional reform programme. Yet the tidal wave of reforms in Blair’s first term released second and third waves which are still working their way through the system. The dynamism is particularly evident in devolution in Wales, Scotland, Northern Ireland and London. It is at work in Parliament, in particular in the new House of Lords. It is also being driven by the changes flowing from the Human Rights Act (HRA), greater separation of the judiciary and the new Supreme Court. 285

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This alarms some politicians and commentators, who ask in panic where we are going to end up. But the careful analysis of the earlier chapters enables us to make some reasonably well-informed predictions of where the reforms are taking us. In some respects the Westminster Model will be significantly modified; in others, it will remain very much the same. I am using the Westminster Model in the sense characterised by Lijphart (1999), where political power is concentrated in a single-party executive, dominating the legislature, with a majoritarian electoral system reinforcing the position of two dominant political parties. To introduce the overall conclusions in brief, the UK executive is becoming significantly more constrained and the political system less majoritarian because of four main changes: • the growing power of the second chamber and more general strengthening of Parliament relative to the executive; • devolution significantly reducing the UK government’s policy reach in Scotland, Wales and Northern Ireland; • the growing power of the judiciary as a result of the HRA and the new Supreme Court, and the continuing effects of the EU; • delegation by politicians to independent, non-majoritarian institutions. But between now and 2020 the political system is likely to remain majoritarian in the following respects: • • • •

Retention of the Single Member Plurality (SMP) voting system; Retention of a predominantly two-party system; Single-party majority cabinets; Limited devolution, with 85 per cent of the United Kingdom enjoying no devolved powers; • Retention of a flexible constitution that can be amended by simple parliamentary majority. That is the central forecast about the overall framework. But there is a range of scenarios around this, with the possibility of the reforms going further, or not so far. And for participants in the United Kingdom this summary understates the perceived impact in two respects. First, because Lijphart’s model focuses narrowly on the formal powers granted to institutions, it can miss the significance of changes in their behaviour. And second, because the United Kingdom is so steeped in a majoritarian political culture and all the attitudes that go with it, even a small shift along the spectrum towards a more consensual style of politics will feel dramatic and, for many of the participants, distinctly uncomfortable.

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More tightly constrained UK executive There is no doubt that the UK executive will be more tightly constrained. This is a theme running through half of the chapters in the book. In these chapter matrices the main drivers of change are forces pushing south and east: towards further dispersal of power, and tighter legal and political constraints. Parliament is the single most important constraint, and Chapter 16 brings out the growing assertiveness of both the House of Lords and the House of Commons. Now that no party has overall control, the government is regularly defeated in the Lords. An elected House of Lords could be even more obstructive. The public are unaware because the media rarely report what happens in the Lords; and the growing rebelliousness of the Commons has been masked by the size of the Blair and Brown governments’ very large majorities (Cowley 2005). Chapter 14 suggests that in future small majorities are more likely, and governments with small majorities or no majority will find it much harder to get their business through Parliament. The judiciary is the next most important constraint. It is changing rapidly in its powers, its governance structure and public perceptions of its role and legitimacy. The new jurisdiction created by the European Communities Act 1972, the expansion of judicial review and the HRA have all served to increase the range and powers of the courts. Rather like the House of Lords, the courts are also becoming more self-confident and more willing to curb the excesses of executive power. Recent examples were A v Secretary of State for the Home Department [2005] UKHL 71 about control orders for terrorist suspects, and the High Court judgement in the BAE bribery case (R v Serious Fraud Office and BAE Systems) [2008] EWHC 714 (Admin), albeit overruled by the House of Lords. Devolution, although it is developing fast, does not pose such constraints for the UK executive except within the devolved territories of Scotland, Wales and Northern Ireland. In the 85 per cent of the United Kingdom that is England, the UK government faces no constraints. In the remaining 15 per cent the policy lead on devolved matters now lies with the devolved governments. But they operate within a financial framework that is wholly controlled by the UK government and under the shadow of English policy expectations which can be equally constraining. Consider the influence of ‘national’ targets for health and education, and the pressure on the devolved governments to follow suit; there is much less comparable pressure flowing the other way.

Further big constitutional changes unlikely The period of big constitutional changes is now past. The consequences are still working their way through the system; and some of the consequences themselves are big. But between now and 2020 we are unlikely to see further changes on the scale of devolution, the HRA or the removal of the hereditary peers from the House of Lords. To be specific,

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• PR for the House of Commons is unlikely to be introduced over the next 10 to 12 years. As Blau explains in Chapter 14, it is not a change which can be introduced in a single step. It requires a series of steps, extending probably over two parliaments, and is unlikely to happen unless two parliaments in succession are hung, the Liberal Democrats hold the balance of power, and they insist on a referendum on PR as the price of their support. Even in those circumstances the referendum might not be carried: the recent referendums on PR in British Columbia and Ontario both resulted in decisions to retain first-past-the-post (FPTP). And even if a referendum is carried it might not be implemented: depending on the system chosen, it might require a third parliament to implement the necessary boundary changes. • An elected House of Lords is more likely than PR for the House of Commons, and is more likely to be offered to the Liberal Democrats as a proxy for PR in the Commons. It is an easier issue on which to strike a deal, and it does not require a referendum. (Arguably it should: but there is no consistency among those constitutional changes deemed to require a referendum and those which do not). But as Russell has argued elsewhere, there would need to be agreement on what proportion of the Lords are to be elected, by what voting system, for how long a term and whether the term is renewable or not: all issues on which reformers themselves disagree (Russell 2007). There could be significant backbench rebellions. Without cross-party support, a bill for an elected House of Lords might not clear the Commons, and would certainly face difficulties in the Lords. • Scotland is most unlikely to be independent by Alex Salmond’s target date of 2017. The steps on the road to independence present a series of difficult check points for the Scottish National Party (SNP) government to navigate. First they must persuade a majority in the Scottish Parliament to pass the legislation authorising a referendum. In the present parliament there is no such majority, and because of the proportional voting system the unionist majority may continue in future parliaments. Second the Scottish government must persuade the people of Scotland to vote ‘Yes’ in the referendum. Opinion polls suggest support for independence has remained unchanged at around 25–30 per cent (Curtice, 2008: 4–6). Third, the referendum could at most authorise the Scottish government to enter into negotiations with the UK government about the terms of independence. Many of the terms will be unwelcome. Most unwelcome of all, Scotland would have to re-apply for membership of the European Union (Murkens 2002). The fourth obstacle is that independence can only be granted by Westminster: it is not within the competence of the Scottish Parliament to declare independence unilaterally. Surprisingly, this obstacle is likely to be less challenging than the others. Successive British prime ministers have recognised the Scottish people’s right to self-determination (Murkens 2002: 12). So the last hurdle is the lowest

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of all. But to reach the last gate there are some much bigger ones for the SNP to clear first. • The unification of Ireland is also highly unlikely between now and 2020. It does not even feature in the scenarios presented in Chapter 4. At most Wilford and Wilson anticipate the possibility of greater north–south co-operation, which would help make ‘Irish unity a reality without that having to take the form of a unitary state’. • An English Parliament is not going to happen. No major political party or heavyweight politician has come out in support of the idea. Public support for the idea is creeping upwards, but remains low, and it is not a high-salience issue. • English votes on English laws could eventually pave the way to an English Parliament, because it could lead in time to a parliament within a parliament at Westminster. But English votes on English laws is itself unlikely to happen. Labour will certainly not introduce it. The Conservatives, despite their commitment, are unlikely to do so once in government. Chapter 5 suggested that they are more likely to reduce the number of Scottish and Welsh MPs. A British bill of rights is the only big change which is likely. But in terms of content it may do little more than repackage the ECHR, and add a rhetorical preamble linking rights with duties. If in the process it serves to legitimise the ECHR in the eyes of the tabloid press, it could nevertheless be a gain.

Devolution will loosen but not break the bonds of the United Kingdom Devolution got off to a smooth start thanks to the coincidence of Labour-led administrations in London, Edinburgh and Cardiff, and the lack of policy or constitutional differences between them. With the coming to power of nationalist parties in Scotland, Wales and Northern Ireland, it is now to be tested in three ways: in the demand for greater powers, more fiscal autonomy, and more effective intergovernmental relations. In the period to 2020 Wales will achieve full primary legislative powers. On present plans Wales should be granted the powers early on, following a referendum held before 2011. But making full use of the powers will take much longer, because of the lack of draftsmen within the Welsh government and limited scrutiny capacity in the Assembly. Scotland will also gain some additional powers, as a gesture to Alex Salmond, but they are more likely to be additional powers at the margin than whole new policy fields, because the devolution settlement in the Scotland Act 1998 is already relatively generous. Northern Ireland will be granted the powers it has long been promised in policing and criminal justice.

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Greater fiscal autonomy will be demanded more strongly as the growth in UK public spending slows down. It is more likely to be granted by a Conservative than by a Labour administration. Labour in Scotland may be gradually coming round, but Labour in London will be reluctant to introduce a difficult change at the behest of the SNP, which may in time threaten Labour’s traditional supporter base. The difficulties of negotiating any new funding formula will be a real test of the structures of intergovernmental relations. They may see Scotland, Wales and Northern Ireland banding together for the first time against the UK government. If there is a hung Parliament at Westminster the UK government may not be in a strong position, because it might need the swing votes of the nationalist parties and the DUP to get its other business through. This will put the Union under strain, but will not rupture it. Intergovernmental disputes, especially over finance, are the stuff of intergovernmental relations in every devolved and federal system. The UK government will need to revive the structures created at the dawn of devolution but allowed to atrophy, and put them to work. It will also be a test of the civil service, nominally still unified across Scotland, Wales and the United Kingdom, but fragmenting fast into three separate services: see Chapter 8. Even if Scottish independence is most unlikely (see previous section), the devolution settlement will feel unstable, and this instability will be played up by the nationalists and in the media. But structural instability is a fact of life in any federal or devolved system with a high degree of asymmetry. Look at the tensions with Catalonia and the Basque country in Spain, or Quebec in Canada. Similarly in Britain: now that devolution has exposed the national question, it is one which will never be fully resolved (short of independence), and managing it wisely will be a permanent task and permanent challenge for the UK government.

More assertive Parliament and judiciary The devolved governments will not be the only ones seeking to extend their powers and putting pressure on the UK executive. The legislative and judicial branches will also be extending the envelope in several ways: • The judiciary will continue the incremental extension of their jurisdiction by court judgements which extend the bounds of judicial review, by stronger interpretation of Human Rights Act, and by further judicial rulings on the validity of statutes. Outside the courtroom they will support their claims to greater judicial independence in speeches and articles, with supportive statements from senior judges in other countries. • Parliament will gradually become more assertive in its scrutiny of the executive and its willingness to amend proposed legislation. Scrutiny of the executive will be tightened through select committees having

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greater resources, focusing on their core tasks (Liaison Committee 2003) – increased scrutiny of departmental budgets, and added scrutiny of senior public appointments. Scrutiny of constitutional issues will be particularly sharp thanks to the existence of three new select committees: the Justice Committee in the Commons, the Constitution Committee in the Lords, and the Joint Committee on Human Rights (JCHR). The Lords will continue to be the main forum for amending legislation, but as the new public bill committees in the Commons become more established, they may also become forums in which legislation is properly scrutinised. • How much this greater assertiveness impacts on the government will depend on the size of the government’s majority. Received wisdom has it that the smaller the majority, the greater the power of Parliament; with hung parliaments delivering maximum power of parliament over the executive. But whether a hung parliament delivers this result depends critically on whether a minority government is formed, or there is a coalition government with an overall majority (Brazier and Kalitowski 2008: 41–2). Parliament under a coalition government could be as subordinate as under single-party majority government, or even more so if the government includes the Liberal Democrats, and neuters their opposition in the Lords (see Chapter 16). • One interesting feature to watch, as both the judiciary and parliament become more assertive vis-à-vis the executive, is whether they support each other in seeking extension of their powers. Will the Justice Committee in the House of Commons support the judiciary’s campaign to run the Courts Service, or to acquire greater powers under the Concordat? Will the judiciary become more or less accommodating towards parliament if parliament wishes to include among its scrutiny of senior public appointments some of the senior judges?

Delegation to independent bodies to restore trust in politics The final set of predictions can be grouped under the heading of measures to restore trust in politics. Declining trust has become a matter of intense concern for politicians, who have resorted to a growing range of measures to rebuild trust in politics and the political system. These include greater constitutionalism; strengthening the role of the courts and specialist constitutional watchdogs; and experimenting with new forms of direct and deliberative democracy. Taken together these measures will reduce the scope of politics, but they may not succeed in their aim of restoring trust. Greater constitutionalism and growth of constitutional watchdogs Greater constitutionalism is evidenced in greater separation of powers and in the growing transfer of functions from elected politicians to unelected bodies. Greater separation of powers is clearly visible in the much sharper

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separation of the judiciary from the other branches of government, through creation of the new Supreme Court, and replacement of the Lord Chancellor by the Lord Chief Justice as head of the judiciary. But the same spirit is evident in the wish to separate out the different roles of the Attorney General, or to reduce the Prime Minister’s involvement in the appointment of Bishops, producing greater separation between Church and State (Ministry of Justice 2008a). The growing transfer of functions from politicians to unelected bodies is particularly noticeable in the constitutional field, with the proliferation of constitutional watchdogs described in Chapter 12. There are now over a dozen specialist constitutional watchdogs, half of them created in the last ten years. They represent a major strengthening of the legal constitution and depoliticisation of many issues which previously were left to the discretion of ministers. Judicial appointments which were entirely in the discretion of the Lord Chancellor are now tightly regulated by the Judicial Appointments Commission. Appointments to the House of Lords, previously the sole preserve of the Prime Minister, are now regulated by the House of Lords Appointments Commission. Disclosure of information is now regulated by the Freedom of Information Act and enforced by the Information Commissioner. This depoliticisation will provoke the occasional backlash and attempts at repoliticisation. Recent examples are the attempt by MPs to exempt parliament from the FOI Act in 2007, described in Chapter 11, and resentment of the Electoral Commission which led to its wings being clipped, described in Chapter 12. The constitutional watchdogs at present show little solidarity with each other, but over time they may come to be viewed as part of the same family, the integrity branch or ‘fourth’ branch of government (Ackerman 2000; Spigelman 2005). New forms of direct and deliberative democracy In response to the demands for greater public participation all the political parties have promised greater use of petitions, citizens’ juries and other instruments of direct and deliberative democracy. The expectation is that elected politicians will become more responsive to public concerns through e-petitions to Parliament and No 10, and devices like the People’s Panel, and that the public are more likely to accept unpopular policies if they are endorsed by deliberative forums of fellow citizens. But the controversy surrounding the citizens’ juries on GM food and nuclear power showed the risks of such exercises being subject to the charge of manipulation. What began as exercises to restore trust could end up increasing public cynicism. There are also risks to representative democracy in the greater use of direct democracy, from the media and from single-issue pressure groups. Chapter 13 showed how media pressures and the decline of representative politics might lead to ‘Baronial’ or ‘Cyber’ Politics: the first dominated by the media

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barons, the second by single-issue campaigners able to exploit petitions and ballots conducted on the internet. The government is aware of the dangers of ‘plebiscitary democracy’ (Wills 2008), but it flirts with new forms of direct and deliberative democracy in ways which risk making plebiscitary democracy more likely. And the growing use of referendums raises public expectations which can lead to disenchantment when the government decides against a referendum, as happened with the EU constitutional treaty in 2007. Measures to increase trust may have the reverse effect Some of these developments which are intended to increase trust may end up having the opposite effect: • The House of Lords Appointments Commission, established to dispel concerns about abuses of patronage, will have served initially to increase such concerns when its blocking of the nominations of certain party donors led to the ‘cash for peerages’ scandal. • The same paradoxical result may be at work with media reporting of donations to political parties. Now that donations are made public by the Electoral Commission, the media publish many more reports about donations than they used to when party funding could be kept secret. • The same is true of FOI. The media’s selective reporting of FOI stories is more likely to reduce than increase trust. A good example is the media reporting of FOI disclosures about MPs’ expenses, or the selective reporting of the Treasury’s advice to Gordon Brown about tax changes in the 1997 budget (Hazell 2007d). • The impact on trust depends critically on the way these issues are reported in the media. Chapter 13 described the changing style of news reporting, with the populist anti-politician stance adopted by many journalists and news presenters, and the muckraking and abusive style of most political blogging sites. In an age obsessed with personality-driven scandal stories neither development is likely to be reversed. Both are very undermining of respect for politics and politicians.

Where will the Westminster Model end up? The second half of this chapter tries to sum up the impact of these broad predictions on the Westminster model. It does so by going back to the overall matrix first presented in Figure 1.6. Chapter 1 suggested that the overall direction of travel was to move the British constitution south and east on that matrix. If that is accepted, then it may be helpful to magnify the southeast quadrant to illustrate in more detail the range of future possibilities which it contains. Figure 17.1 does just that. It shows on the east-west axis

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Concentration of power • No further devolution to Scotland, Wales or Northern Ireland • Abolition of Regional Assemblies and RDAs in England • Barnett Formula continues • Weak Local Government • Representative Democracy • Citizens juries etc token gestures

Westminster Unchanged

Political Constitution • Parliamentary sovereignty • No ‘constitutional’ laws • Weak constitutional watchdogs • Executive discretion

Westminster Devolved

Westminster Constitutionalised

Legal Constitution • Entrenched bill of rights • Strong judiciary and judicial review • Strong constitutional watchdogs • Executive discretion tightly regulated

Westminster Transformed

Dispersal of power • Further powers for Wales and Scotland • Regional Assemblies in England • Elected Mayors in major cities • • • •

Citizens’ juries and citizens’ assemblies Constitutional conventions Referendums on constitutional issues Direct and deliberative democracy

Figure 17.1 Magnification of Dispersed Constitutionalism scenario

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the possibilities for further constitutionalism, and on the north–south axis the possibilities for further devolution and dispersal of power. The shift east to the legal constitution in Figure 17.1 is exemplified in the recognition of ‘constitutional’ laws which are entrenched, further separation of powers, stronger courts and constitutional watchdogs, tighter regulation of the executive and the civil service, and ultimately a written constitution with special procedures for its amendment. The dispersal of power on the north–south axis is mainly geographical, through further devolution of powers to Wales, Scotland and Northern Ireland and the revival of regional assemblies in England. But the dispersal of power has another dimension, in the shift from representative to direct and deliberative democracy, with more petitions and citizens’ juries; referendums on constitutional issues such as Lords reform and the British bill of rights; and the use of constitutional conventions or citizens’ assemblies to draft a bill of rights or written constitution. Figure 17.1 enables us to depict four future scenarios for the Westminster Model in the four quadrants which are as follows.

Westminster Unchanged The scenario in the north-west quadrant depicts no change at Westminster, beyond the changes which had already taken place by 2008. The House of Commons remains elected by FPTP and continues to deliver majorities for single-party governments. The culture at Westminster remains majoritarian and adversarial. Only the Lords provides an effective check on the government’s legislation, but it remains wholly appointed and continues to be restrained in the way it scrutinises and defeats the government. The judiciary remain similarly restrained. There is no development of Sir John Laws’ doctrine which seeks to recognise ‘constitutional laws’ as being superior to ordinary Acts. The HRA remains an ordinary Act of Parliament, and the judges are restrained in its use. The new Supreme Court carries on much as the old Appellate Committee of the House of Lords. The JAC proves to be conservative in its selection of the higher judiciary. The Equality and Human Rights Commission (EHRC) focuses on the anti-discrimination agenda of its predecessor bodies, with little attempt to develop a stronger human rights culture. Devolution also sees little further change. The Welsh Assembly achieves powers of primary legislation, but fails to make much use of them, for lack of policy drafting and legislative capacity. After a tenth-anniversary review in 2009, the powers of the Scottish Parliament and Northern Ireland Assembly remain essentially the same, with technical changes only. The devolved governments continue to be funded by the Barnett formula. In England devolution takes a step backwards, with the abolition of the (indirectly elected) Regional Assemblies under Labour in 2009, followed by

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the abolition of Regional Development Agencies by a subsequent Conservative government. Local government remains weak and heavily dependent on central government funding.

Westminster Devolved The south-west quadrant shows the continuation of a strong majoritarian culture at Westminster, but dispersal of power through further devolution, and through extension of direct democracy. The contrast between the majoritarian culture at Westminster and the more consensual political culture of the devolved institutions noted by Flinders (Flinders and Curry 2008) grows, but Westminster remains stolidly majoritarian and unmoved by their example. So the House of Commons remains elected by FPTP, and the Lords remains appointed. Even in a hung parliament at Westminster, the majoritarian culture may continue – especially if there is a coalition government with an overall majority (Brazier and Kalitowski 2008). In this scenario devolution goes much further. The referendum on primary legislative powers for Wales is carried, and the Assembly makes full use of its new powers. The Scottish Parliament and Northern Ireland Assembly are granted significant new powers, and also their own revenue-raising powers, to introduce greater fiscal autonomy. In England the process of devolution is revived, after Regional Ministers are seen to be successful and granted new roles and responsibilities. More powers are devolved to the GLA, and elected mayors are introduced into other big cities. The other strand to dispersal of power is greater experimentation with direct and deliberative democracy. After experiments with Citizens’ Summits, a Citizens’ Summit and referendum are proposed to break the logjam on Lords reform. Petitions to Parliament are revived, and single-issue pressure groups exploit them heavily.

Westminster Constitutionalised The north-east quadrant depicts a scenario with many more constitutional checks and balances on the central government, but no further devolution. The government embraces constitutionalism, and invites Parliament to entrench certain constitutional laws, starting with the British bill of rights (for mechanisms of entrenchment see JUSTICE 2007). The courts respond by recognising the British bill of rights and other constitutional laws as superior to ordinary Acts of Parliament. The new bill of rights ushers in a stronger human rights culture, enforced by the judiciary and the Equality and Human Rights Commission. Constitutionalism also finds expression in further separation of powers. The new Supreme Court develops a strong independent profile. The Courts Service is transferred into the control of the judiciary. Constitutional watchdogs are also removed from sponsorship of the executive and transferred

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to Parliament, as in Scotland. There is tighter regulation of the civil service, public appointments, the political parties, electoral law and FOI, leading to greater legalisation and litigation of micro as well as macro constitutional issues. Despite the government’s formal embrace of constitutionalism, there is a lot of friction between the constitutional guardians (including the judiciary) and the politicians.

Westminster Transformed The south-east quadrant might be called Charter 88’s dream, or Whitehall’s nightmare. All the reformers’ dreams come true. In addition to further devolution, and greater constitutionalism, Westminster itself undergoes fundamental reform, with an elected House of Lords followed by PR for the House of Commons. This means that the UK executive is much more seriously constrained. In a more multi-party system, no single party can form a majority in the Commons, and minority governments or coalition governments become the norm. Westminster ceases to be majoritarian, and becomes a system more like Germany, where the governing party is forced to build alliances with other parties to get all its legislation through. It has to build alliances in the second chamber as well as the first, and faces further obstacles from a more powerful Supreme Court and more devolution.

Which scenarios are most likely? Almost all the forces in Figure 17.1 point south and east, towards Westminster Transformed. But in our timescale to 2020 it is not necessarily the most likely scenario. In that timescale the more likely are the first two scenarios, in the north-west and south-west quadrants. Westminster Unchanged is a plausible scenario, with little significant change beyond those already introduced. If there are changes, devolution provides the strongest set of drivers, and those least amenable to control by the UK government. So Westminster Devolved is also plausible, with devolution providing most of the action over the next ten years. Rather less likely is Westminster Constitutionalised. The courts will have a higher profile but may want to consolidate their gains, and the constitutional watchdogs show little sign of effective collective action. Least plausible of all is Westminster Transformed, at least in its full version, with an elected House of Lords and PR for the House of Commons both unlikely to emerge in the next 10 to 12 years. This will come as a bitter disappointment for constitutional reformers who have fought so long for the complete transformation of the Westminster Model. But as Chapter 16 concluded, if their dreams come true they might still end up being disappointed. PR may not usher in Nirvana, for two reasons. First, if both chambers are elected on proportional systems, the second chamber might not prove a strong check on the first. It would depend on

298 Representation

the electoral systems chosen, but a coalition government in the Commons might find that it had a majority in both chambers. With an extension of the present party system, the Liberal Democrats would be likely to hold the balance of power in both Houses. The second reason why Nirvana might be short-lived is that both chambers might see tighter whipping and party control. In the Lords this is an inevitable result of election: an elected chamber is bound to be less independent-minded than a group of people appointed for life. In the Commons tighter party cohesion is likely to result from governments with smaller majorities. In both cases the result will be more trading between party blocs and leaders, with deals on legislation behind the scenes, rather than negotiation between government and parliament on the floors of both Houses.

How majoritarian will the Westminster Model be in future? By trying to capture elements from all the different variables, the preceding scenarios make it difficult to distinguish which are the really big changes and which are secondary. We can try to separate out the more important changes from the rest by going back to Lijphart’s model with which we opened this chapter. Most important of all would be a change to the electoral system for the House of Commons. That is the first of Lijphart’s ten variables (see Appendix to Chapter 1), which helps determine two of his other variables: the cabinet (single-party majority, or minority, or coalition government) and the party system (two-party versus multi-party). If the United Kingdom switched to PR for the House of Commons it would be a huge change: it would cease to be majoritarian and become (in Lijphart’s terms) a consensual democracy. But as Chapter 14 demonstrates, a shift to full PR is most unlikely. If PR happens at all, it is more likely to be in more limited form, like the AV+ system recommended by the Jenkins Commission (1998), with only 15 per cent of list seats. That would leave the United Kingdom more towards the majoritarian end of the scale, especially if (as Jenkins intended) single-party majority governments resulted more often than not. The next most important change would be an elected second chamber. Chapters 14 and 16 both suggest that Lords reform is more likely to happen than electoral reform for the Commons. The question here is how much stronger the Lords would be as a result. An elected (or partly elected) second chamber would be more legitimate and assertive, and inclined to defeat the government even more often than it does now. But depending on the electoral system, its members might be less independent-minded, and more subject to control by party elites. So in Lijphart’s terms we might have stronger bicameralism, and might have moved towards more consensual democracy; but as Chapter 16 argues, we might have lost something along the way. An elected House of Lords is likely to involve greater centralisation of power in the hands of party elites.

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The next most important potential changes spring from devolution. The biggest change would involve a change in the government of England, but significant change here is highly unlikely. Neither an English Parliament nor elected Regional Assemblies seem likely at all in the next 10 to 12 years. Instead we are likely to see a continuation of ‘creeping regionalism’ with further development of regional structures in an incremental and patchwork way, and (if the Conservatives are elected) modest experiments with the development of English forums at Westminster. In Lijphart’s terms, the United Kingdom will be at most a ‘15 per cent federation’, so long as the 85 per cent constituting England remains undevolved. Two of Lijphart’s other variables are a Supreme Court and an enforceable bill of rights. In both cases Lijphart’s scoring depends primarily on whether they have a strike-down power. It is conceivable (but unlikely) that a new British bill of rights would include such a power. But the formal position does not tell the full story. Under the HRA declarations of incompatibility have proved an effective weapon, one which engages the other branches of government in finding solutions. As for the new Supreme Court, what matters most is its sense of legitimacy and overall effectiveness. If it wanted, the Court could develop a strike-down power, because the principle of parliamentary sovereignty in its origins is a rule of recognition developed by the courts. The rule can therefore be changed by the courts; but unless encouraged or goaded by the other branches of government the Supreme Court is unlikely to do so. So the scorecard is mixed, and the conclusions more nuanced than Lijphart’s model allows. In terms of its central institutions the Westminster Model looks set to remain majoritarian over the years to 2020. It is likely to retain a majoritarian voting system for the House of Commons, a predominantly two-party system, and single-party majority cabinets. Devolution will remain limited to Scotland, Wales and Northern Ireland, so that 85 per cent of the United Kingdom enjoys no devolved powers. The constitution will remain unwritten and unentrenched, and capable of being amended by simple parliamentary majority. But within this majoritarian framework the UK executive is becoming significantly more constrained, and the political system a lot less majoritarian and (in Lijphart’s terminology) more consensual. This is because of the growing power of the second chamber, and more general strengthening of Parliament relative to the executive; the growing power of the judiciary; growth in the legal constitution and legalisation of politics; and delegation by politicians to independent, non-majoritarian institutions. None of these developments score on Lijphart’s scale, so they do not affect his classification, which would still rate Westminster as heavily majoritarian in 2020. But it is a weakness of Lijphart’s classification that it focuses narrowly on the formal powers granted to institutions, and can miss the significance of culture and behaviour. When studied in detail, Westminster turns out to be

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less supine than its critics suppose (Cowley 2005), and compares well with other parliaments in terms of its autonomy and effectiveness (Russell and Paun 2007). The same goes for the HRA, which introduced a more systematic set of human right checks on the executive (through s. 19 statements) and the legislature (through the JCHR) than is found in systems which rely solely on a strike-down power for the courts. So for a more balanced judgement it is not just the formal powers of the institutions which count, but the interplay between them and their overall effectiveness. The other respect in which Lijphart and those who use his classification need to be challenged is the assumption (sometimes implicit, sometimes explicit) that consensual systems are superior to majoritarian ones, and that proportional voting systems are always preferable to majoritarian ones. It has been mentioned already in this chapter, but it bears repeating, that an elected House of Lords combined with PR for the Commons might actually weaken Parliament, and not strengthen it. It would depend on the electoral systems chosen, but there is a risk that the end result might be a government majority in both chambers, not just in one, and tighter whipping and tighter party control in both. Most reforms have unintended consequences; but it would be a very serious consequence if a measure or series of measures which were intended to strengthen Parliament ended up weakening it.

Table of Cases

A v Secretary of State for the Home Department [2004] UKHL 56 . . . 166 A v Secretary of State for the Home department? [2005] UKHL 71 . . . 287 Al-Skeini v Secretary of State for Defence [2007] UKHL 26 . . . 177 Department for Education and Skills v Information Commissioner and Evening Standard, EA/2006/0006 . . . 196 Ghaidan v Godin-Mendoza [2004] UKHL 30 . . . 160 Jackson and Others v Attorney General [2005] UKHL 56 . . . 25 Portuguese Republic v Commission (C-88/03) [2006] CMLR 45 (the ‘Azores case’) . . . 42 R v Serious Fraud Office and BAE Systems [2008] EWHC 714 . . . 286 (Admin) . . . 287 YL v Birmingham City Council [2007] UKHL 27 . . . 165

301

Table of Legislation

UK and Scottish Acts Access to Health Records Act 1990 . . . 190 Access to Medical Reports Act 1988 . . . 190 Access to Personal Files Act 1987 . . . 190 Act of Settlement 1701 . . . 145 Act of Union 1707 . . . 150 Bill of Rights 1689 . . . 3, 159 Church of England Assembly (Powers) Act 1919 (Enabling Act) . . . 155 Church of Scotland Act 1921 . . . 155 Civil List Act 1952 . . . 149 Civil List Act 1972 . . . 149 Civil List Act 1975 . . . 149 Constitutional Reform Act 2005 (CRA) . . . 18, 110, 111, 113, 117, 118 Equality Act 2006 . . . 166–7 European Communities Act 1972 . . . 287 Freedom of Information (Scotland) Act 2002 . . . 190, 196 Freedom of Information Act 2000 . . . 178, 179, 180, 188, 185, 293 Government of Wales Act 2006 . . . 5, 7, 30 Honours (Prevention of Abuses) Act 1925 . . . 197 Human Rights Act 1998 (HRA) . . . 5, 109, 112, 159–61, 160 (fig 10.1), 164–6, 168, 174, 300 Local Government (Access to Information) Act 1985 . . . 190 Local Government Act 2000 . . . 8 Magna Carta 1215 . . . 159 Official Secrets Act 1911 . . . 190 Official Secrets Act 1989 . . . 190 Political Parties, Elections and Referendums Act 2000 (PPERA) . . . 250, 251, 256, 266

Prevention of Terrorism Act 2005 . . . 165 Regency Act 1937 . . . 144 Regency Act 1953 . . . 144 Representation of the People Act 1832 (Great Reform Act) . . . 2 Royal Marriages Act 1772 . . . 147 Scotland Act 1998 . . . 289 Statute of Westminster 1931 . . . 148

International Treaties and Conventions Anglo-Irish Agreement 1985 . . . 58, 59 European Charter for Regional or Minority Languages 1992 . . . 70 European Convention on Human Rights 1950 . . . 110, 159, 161, 169–70 European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities 1980 . . . 68–9 Framework Convention for the Protection of National Minorities 1995 . . . 70 Ohrid Framework Agreement 2001 . . . 69, 70, 71

European Union Legislation European Union Charter of Fundamental Rights 2000 . . . 110 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (Treaty of Lisbon) 2007 . . . 110 Treaty on the European Union (Maastricht Treaty) 1992 . . . 177

302

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Index Figures are indicated by fig., notes by n., indicated in italics, enclosed in parenthesis; e.g. abdication, 142–3(fig.9.1). 9/11, 57, 163, 164 abdication, 142–3(fig.9.1) Accession Council, 150, 151 Act of Settlement 1701, 145 Act of Union 1707, 150 Adams, Gerry, 57 Additional Member System (AMS), 240 administrative regionalism, 79 Alexander, W., 30, 52 Alternative Vote (AV), 240, 241, 242, 245–6 Anglo-Irish Agreement, 58, 69 Anglo-Scottish relationship, 104 Ashdown, P., 240 Audit Commission, 199(fig.12.1) Australia financial arrangements, 48 and FOI, 192(fig.11.8) media, 216 ministers/civil servants, 137(fig.8.3) parliamentary system, 17, 279–80 and republicanism, 145 Bagehot, 140 Barnett formula, 46, 47, 48–9, 55(n.2), 63, 87 Belfast Agreement, 56, 57, 59, 61, 70 bicameralism, 298 Bill of Rights 1689, 3, 159 Bill of Rights and Duties, 110 Blair, T., 7, 62, 129, 219(fig.13.1) government, 68, 267–8 effect, 255 blogging, political, 217, 220–221, 225 Bosnia-Hercegovina, constitution, 69, 70 British bill of rights, 110, 161, 167(fig.10.3), 168–9, 175, 289 British Columbia, 238 see also Canada British-Irish Council (BIC), 59

British-Irish draft agreement, 59 Britishness, 93, 94–9, 94(fig.6.3), 99–103, 104(fig.6.7) Brown, G., 3–4, 133, 224, 226, 264, 269, 293 Business Appointments Committee, 198(fig.12.1)

Cabinet Office, 128 Cameron, David, 2, 3, 4, 5, 18, 45, 102, 110, 131, 167–8, 173, 182, 224, 226, 252, 271, 275 campaigning, 250(fig.15.2), 253 Canada, 18, 33, 48, 238 Capability Reviews, 127 cash for peerages, 200, 293 Catholicism, 57 celebritisation, of monarchy, 144–5 centralised constitutionalism, 17 centralising/decentralising dynamics, 37(fig.2.2), 50(fig.3.3) Church of Scotland, 150, 155(n.2) Citizens’ Assembly, 238 city mayors, 79 city-regional governance, 79 civic society, 70 Civil List, 149 civil service changes in scope, 128–9 codification of, 133 Scottish, 131 Senior, 127 structural changes, 127–8 Civil Service Commissioners, 134, 197, 198(fig.12.1) Code of Practice on Open Government, 198 Committee on Standards in Public Life, 198(fig.12.1), 200, 250–1, 255 326

Index Commonwealth, the, 141, 145 Comptroller and Auditor General (C&AG), 197, 198(fig.12.1) Conservative Democracy Taskforce, 276 Conservative Party, 97, 103, 168, 260 constitution changing, 1–3 political/legal, 14–15(fig.1.5), 114–15, 172, 188(fig.11.6), 256 reform, 4–6 written, 3–4 constitutional arrangements, NI, 68 asymmetry, 90 changes, 287–9 reform, 233, 285–6 scrutiny of, 291 watchdogs, 8, 197, 198–9(fig.12.1), 291–2 Constitutional Affairs Committee, 113 Constitutional Affairs Select Committee (CASC), 182–3, 251 constitutionalism, 17, 18, 291–2 Constitutional Reform Act 2005, 110–11 Constitutional Renewal Bill, 112, 269 Council of Europe, 70–1, 183 Counsellors of State, 142(fig.9.1) counter-terrorism, 166 Crerar Report, 199, 205 Crossbenchers, 271 Crossman, Richard, 151 cross-voting, 235 cube law, 235 Data Protection Act (DPA), 187 Dayton accords, 69, 70, 71 decentralisation, England’s government, 73, 75(fig.5.1) decentralised states/systems, financial arrangements, 46–9 democracy consensual, 298 and media, 227(fig.13.3) new forms of, 292–3 Democratic Unionist Party (DUP), 57, 71, 72(n.3) Department for Education and Skills, 128 Department of Health, 128

327

Department of Nations, 101 depoliticisation, 292 devolution dynamism of, 8, 285 England, 17, 73, 80–5 future of, 299 and Home Civil Service, 129–31 and human rights culture, 169 as national phenomenon, 31–2 Northern Ireland, 56, 67 outcomes of, 36–42 and party politics, 32–3 power-sharing, 58 predictions of, 6–7(fig.1.1) and reform, 4–6 and ‘steady state’ Union, 93–4 and UK, 289–90 and UK executive, 287 d’Hondt proportionality rule, 58 Diana, Princess of Wales, 144, 154 dissolution, of Parliament, 140 donations, 251, 252, 293 dual polity, 101 Duchy of Cornwall, 151 economic development, Wales, 42 economic slowdown, 85 Education and Skills Authority, 64 elected regional assemblies (ERAs), 78 Electoral Administration Bill, 251 Electoral Commission, 198(fig.12.1), 250–2, 253, 255, 264 case study, 201(fig.12.2) electoral reform, 270 electoral systems, 233, 234–7, 239–42, 245(fig.14.4) Electronic Document and Records Management Systems (EDRMS), 183 Elis-Thomas, Lord, 41 English Constitutional Convention, 77 English Grand Committee, 102 Englishness, 102–3 see also Britishness English Question, 73, 75–6(fig.5.1), 77–8, 78–80 English votes on English laws, 78, 82–4, 269, 289 e-petitioning, 222, 223, 292 equalisation systems, 48, 52

328 Index Equality Act 2006, 166–7 Equality and Human Rights Commission (EHRC), 166–7 Falconer, Lord., 94 federal systems, finance, 46–7, 49(fig.3.2) federal-unitary dimension, 24(fig.1.9) finance system, intergovernmental, 51–3 financial arrangements decentralised/federal systems, 46–7, 47–9, 50(fig.3.3) of monarch, 149–50, 151–2 first-past-the-post (FPTP), 266 forecasting techniques, 10, 21–2 France, 17, 256 Freedom of Information Act 2000, 178 cost of, 184 key points, 179(fig.11.1) numbers of requests, 180, 185(fig.11.4) Fulton Report, 127 futures studies, 20–1 Germany, 48, 55(n.1), 216, 247 Gershon Report, 129 globalisation, 96, 163 Goldsmith, Lord., 100 governance city-regional, 79 judiciary/court, 110–12 multi-level, 187 Northern Ireland, 68 Governance of Britain, 133, 223–4 government Blair, 68, 268 coalition, 233 decentralised, 82 elected regional, 77(fig.5.2) recentralised, 80–2 Government of Wales Act (2006), 5, 7, 30 Graham, Sir A., 203 Grants in Aid, 149 Gray, Paul, 134 Greater London Authority, 5 Green Party, 253 Hague, W., 78 Hain, P., 240 Hansard, 223 hereditary peers, 267

Home Civil Service, 123, 129–31 Home Office, 128 Home Rule, 97 honours scandals, 197 Houghton scheme, 151 House of Commons, 5, 267 House of Lords election to, 270, 288 legitimacy of, 284(n.3.5) power of, 5, 274 reform of, 69, 71–2, 267, 268, 278, 298 House of Lords Appointments Commission, 199(fig.12.1) House of Lords Constitution Committee, 46, 58, 110, 113, 182, 197 Howe, G., 275 Human Rights Act, 5, 159–61, 160(fig.10.1), 164–5, 300 and judiciary, 109, 112, 165–6 repeal of, 110, 168, 174 Human Rights Commission, 7 human rights culture, 161, 162(fig.10.2), 165, 172 hung parliaments, 241, 247 Hurd, Douglas, 90 independence of England, 77 Scotland, 40, 288, 290 Independent Adviser on Ministerial Interests, 199(fig.12.1) Independent Commission on Policing 1999, 61 inequalities England/Scotland/Wales, 98 social, 62, 67 statistical indicators, 35(fig.2.1) territorial/regional, 33–6, 74, 86 Information Asset Registers, 183 Information Commissioner (ICO), 178, 180, 182, 198(fig.12.1) Information and Communication Technologies (ICT) and FOI, 183 Information Tribunal, 178, 180–2 information access to, 188(fig.11.6;7) Europe, 183–4 government, 179, 189(fig.11.7) see also Freedom of Information Act IRA, 57

Index Ireland north/south relationships, 64 unification, 59, 289 Irvine, Lord, 159, 178 Jenkins Commission, 298 Jenkins, R., 151 Joint Committee on Human Rights (JCHR), 164, 165 Joint Ministerial Committee, 69 journalism, political, 218 Judges’ Council, 111, 113 Judicial Appointment Commission (JAC), 112, 113, 199(fig.12.1) Judicial Communications Office, 113 judiciary and Human Rights Act, 165–6 perceptions of, 112–14 power of, 286, 287, 290–1 role of, 114–19, 114(fig.7.1) JUSTICE (NGO), 167 Justice Select Committee (JSC), 182–3 Kilmuir rules, 113 Kinnock, N., 239, 260 Länder governments, 55(n.1) laws, cube/square, 235 Lega Nord, 87 Liberal Democrats, 5, 234(fig.14.1), 235, 270 Liberty (NGO), 167 life peers, 274 Lisbon Treaty, 110 loans for peerages, 251 lobby system, 216 local government, 13, 14, 79, 216 London, 36 London super-region, 86 Lord Chancellor, 110–11, 112 Lord Chancellor’s Department, 113 Lord Chief Justice of England and Wales (LCJ), 5, 111, 113 loyalist paramilitary networks, 62 Lyons, M., 79 McGuinness, Martin, 58 Mackay of Clashfern, Lord, 113 Maclean Bill, 185–6(fig.11.3) Magna Carta, 159

329

majoritarianism, 242–7, 286 mandate wars, 279 mayors, city, 79–80 media future changes, 225–6 new, 219–20(fig.13.2), 225 Minister for the Civil Service, 134, 135 ministerial advisor, Australia, 137(fig.8.3) Ministry of Justice, 111, 112, 183 Mixed-Member Proportional (MMP) system, 240–1, 246 Modernisation Committee, 267 monarchy accession, 150–1 constitutional, 140 coronation of, 152–3, 155(n.4) drivers of change, 143–50 financial arrangements, 149–50, 151–2 and religion, 146–8, 147–8(fig.9.2), 152 and taxation, 149 multiculturalism, 163 National Conversation, 30 National Development Plan (2007), 59 nationalism, English, 69, 88, 97, 102–3 nationalist parties, 32 national security, 187 nationhood, 32 nation state, 14 New Labour, constitutional reform, 2 newspaper-based websites, 219–20 newspapers, 217 New Zealand, 17, 195, 282 Next Steps agencies, 129 Northcote-Trevelyan report, 133 Northern Ireland, 52, 60, 61(fig.4.2), 71, 289 Northern Ireland Office, 72(n.5) Northern Irish Human Rights Commission, 169 North/South Ministerial Council (NSMC), 59 Ohrid Agreement, 69, 70, 71 Olympics, 2012, 100 Ombudsman, 197 one-party dominance, 244 One Wales Agreement, 41, 42(n.1), 52 open government, 178, 198 openness, 183

330 Index Paisley, Ian, 57–8 paramilitarism, Irish, 62, 71 American support, 57 Parker Bowles, Camilla, 144 Parliament assertiveness of, 290–1 constraints on change, 272–3 dissolution of, 140 drivers of change, 269–72 English, 77(fig.5.2), 84–5, 89(n.2), 103, 289, 299 supremacy of, 25(n.1) unionist, 80–2 Parliamentary Commissioner for Administration (PCA), 197 parliamentary commissioners, 198 Parliamentary and Health Service Ombudsman, 198(fig.12.1) parliamentary sovereignty, 16 Parliamentary Standards Commissioner, 198(fig.12.1) party activism, trends in, 249–50 party cohesion, 275 party funding, 251, 256 party-funding regulations, 252–3 party membership per constituency, 250(fig.15.1) trends in, 249–50, 254 party system, 97, 224, 233, 244, 245(fig.14.4), 247 Patten report, 61 peace walls, 59, 62 People’s Panel, 292 peripheralisation, 50(fig.3.3) petitions, 222–3, 292 PFI, 129 Phillips, H., 111, 113, 224, 251–2, 253, 254, 255, 258, 259, 261, 262, 264 review, 252(fig.15.3), 255, 258, 259, 261, 264 Phillips, Lord, 111, 113 Pimlott, B., 145 policy communities, 33–4, 38 innovation, NI, 63, 72(n.4) issues, NI, 67–8 public, 14 styles, 34 political identity, 90

political parties and bill of rights, 167(fig.10.3) and change, 253–6 and FOI, 182 inter-war, 244 reform programmes, 3–4 territorial interests, 44–5 Political Parties, Elections and Referendums Act 2000 (PPERA), 250, 251, 256, 266 politics Northern Ireland, 71 party, and devolution, 32–3 symbolic, 38 territorial, 87 power(s) of judiciary, 109–10 of national governments, 14 Power Inquiry, 223–4, 269 power sharing democracies, 69–71 preferential voting, 240 prerogative powers, 3, 146 pressure groups, 261 Privy Council, 150 Privy Purse, 149 Professional Skills for Government, 127, 129 pro-Labour bias, 236 proportional representation, 224, 241, 268, 270, 288, 297 proportional systems, 242, 300 Public Administration Select Committee (PASC), 182–3, 203 draft bill, 131, 133, 134, 136 ethics and standards recommendations, 203(fig.12.3) Public Appointments Commissioner, 198(fig.12.1) public bill committee, 272 public interest test, 178 public participation, 292 Public Standards Commission, 204 Quebec, 39 see also Canada Queen Anne legislation, 142(fig.9.1) RAND Corporation, 20 Realpolitik, 68 referendums, 224, 238, 288

Index reform constitutional UK, 4–6 electoral, 237–8, 238–9 government, 268–9 programmes, of political parties, 3–4 regency, 142(fig.9.1) Regency Acts, 142(fig.9.1) Regional Assemblies, 299 Regional Committees, 82 Regional Development Agencies, 86 regionalism, 299 Regional Ministers, 79, 80 RegLeg network, 67 regulation constituency campaigns, 253 ethical, 205 party-funding, 252–3 self-, 212 religion, 146–8 and monarchy, 152 republicanism, 145 Rifkind, M., 84, 94, 101, 102 Royal prerogatives, 140–1, 146 Royal Ulster Constabulary, 61 Royal expenditure, 149–50 functions, 141–2 see also sovereign St Andrews Agreement, 59, 64, 169 Salisbury convention, 274 Salmond, A., 30, 58, 97, 288, 289 Scotland, 31–6, 38, 204, 288, 289, 290 Scotland Act 1998, 289 Scottish Constitutional Commission, 30 Scottish Human Rights Commission, 169 Scottish Oath, 150, 155(n.3) Scottish Parliament, 39 scrutiny, of executive, 290–1 Sedley, S., 166 select committees, 268, 290–1 and FOI, 182–3 scenario planning, 10 matrix approach, 22–4, 23(fig.1.7), 65(fig.4.3) Senior Civil Service, 127 separation, key steps to, 99(fig.6.4;5) separatism, 94, 97, 100 September 11, 57, 163, 164 Shell (company), 20–1

331

single-member plurality (SMP), 233, 240, 242 Single Transferable Vote (STV), 241, 246 Sinn Féin, 56, 57, 72(n.2) SNP (Scottish National Party), 5, 94 sovereign, the functions of, 141–2 powers of, 140 see also Royal special advisors, 128, 131, 133 square law, 235 Standards Board for England, 199(fig.12.1) Standing Committee on Regional Affairs, 82 Statistics Board, 199(fig.12.1) Steyn, Lord, 25(n.1, 2), 177(n.6) Stormont, 62, 63 Straw, J., 111, 168 Supreme Court, 7, 299 Supreme Governor, of the Church of England, 147 tax corporation, 42(n.2) revenue, 47, 48 sources, 52 taxation Germany, 55(n.1) and monarchy, 149 Taylor of Gosforth, Lord, 113 territorial differences, 33–6 futures, UK, 49–51 interests, political parties, 44–5 management, 54 politics, 87, 129–31 relations, 43 terrorism, 163, 174, 175 counter-, 166 third-party seats, 235(fig.14.2) trade unions, 255 trust, 266 and political parties, 254 and politics, 291–3 principle of, 265 public, 197 social, 68 Tyrie, A., 258

332 Index UK pre devolution, 44(fig.3.1) purpose of, 45–6 territorial interests, 49–51 UK executive, 286, 287, 299 scrutiny of, 290–1 UK Independence Party, 253 Union, the dissolution of, 77 England in, 73, 75(fig.5.1) future of, 290 and political parties, 44–5 purpose of, 45–6 rebalancing of, 102 unionism, 13, 33, 94–5 unionists Northern Ireland, 56, 64 primordial/instrumental, 45 United States, 48, 216 UnlockDemocracy, 268–9

voting cross, 235 preferential, 240 Wales, 31–6, 40–1, 289 Weber, Max, 61 websites, political, 219, 220(fig.13.2), 225 welfare state, 45–6 West Lothian Question, 45, 94, 102 Westminster devolved, 17 and media, 218 potential change, 80, 81(fig.5.3) Westminster model, 1–2, 16, 244, 286, 293–5, 298–300 Westminster Parliament, and HRA, 164–5 Whitehall model, 123, 124, 125(fig.8.2), 129–31 Wills, M., 96, 293 Woolf, Lord, 166

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