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Taking Stock of Constitutional Reform

Published online by Cambridge University Press:  28 March 2014

Nevil Johnson
Nevil Johnson*
Affiliation:
Nuffield College, Oxford
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Extract

During Its First Two Years Or So In Office The Blair Government gave great prominence to its programme of constitutional reform. But more recently its priorities appeared to shift back to more familiar issues. As the election approached social and economic policies were brought to the top of the political agenda, and for the most part opposition parties too have been content to follow suit. All this ref lects the familiar belief that both politicians and most of the electorate in Britain are more interested in ‘bread-and-butter’ issues and the aspirations fuelling them than in constitutional arguments and abstractions. Nor is this view at all surprising. The British constitution is an elusive and ambiguous matter and its history has been one of continuous, often imperceptible, institutional adaptation rather than one marked by periodic formal amendment and revision. As a result the constitution as a whole has usually been taken for granted. It has been assumed to be sound in essentials, though no doubt capable of improvement here and there in response to serious political or social pressures.

Type
Original Articles
Information
Government and Opposition , Volume 36 , Issue 3 , July 2001 , pp. 331 - 354
Copyright
Copyright © Government and Opposition Ltd 2001

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References

1 The emergence of such a body of opinion owes much to the proliferation in the 1980s and after of research organizations and ‘think tanks’ dedicated to the injection of their findings and recommendations into public policy-making. Many bodies of this sort have contributed to the propagation of the case for far-reaching constitutional reform.

2 The Scottish Constitutional Convention was formed in March 1989 as a result of an independent initiative by a number of pro-devolution groups. All political parties were invited to join, but the Conservatives refused and the Scottish National Party attended only the first meeting. The Convention was, therefore, strongly inf luenced by the Scottish Labour Party led by Donald Dewar and the Liberal Democrats. The Convention’s work made a major contribution to persuading the Labour Party to commit itself to devolution for Scotland and Wales in both the 1992 and 1997 elections. It also meant that fully elaborated proposals for Scotland were ready well before 1997. See, for example, the Convention’s paper Scotland’s Parliament, Scotland’s Right,Edinburgh, 1995.

3 The Greater London Authority Act 1999 provided for new structures in Greater London. The Local Government Act 2000 prescribed options for a reorganization of internal governance throughout English local government. See Leigh, Ian, Law Politics and Local Democracy, Oxford, Oxford University Press, 2000,CrossRefGoogle Scholar especially ch. 7.

4 There are now at least six different forms of proportional voting procedure in operation in the United Kingdom for elections in Scotland and Wales, Northern Ireland (two versions), Greater London (also two versions) and for the European Parliament.

5 These matters are considered in Robert Hazell (ed.), The State and the Nations: The First Year of Devolution in the United Kingdom, Imprint Academic, 2000, especially ch. 6 on intergovernmental relations.

6 Notable in the package of measures promised was a radical overhaul of the Royal Ulster Constabulary on the lines subsequently recommended in the report of the Independent Commission on Policing for Northern Ireland (the Patten Report), September 1999.

7 The Northern Ireland Act 1998 provides for excepted, reserved and transferred matters. ‘Excepted’ matters are permanently reserved to the UK Parliament, whilst ‘reserved’ matters (e.g. control of the police) may be moved by UK statutory instrument into the transferred category and vice versa. (NIA 1998, s. 4 and Schedules 2 and 3 refer.) The Scotland Act 1998 provides in Schedule 4 for ‘protected’ enactments and then specifies in great detail in Schedule 5 (18 pages in length) the reserved matters on which the Scottish Parliament cannot pass laws. Both Schedules can, however, be amended by Order in Council.

8 Northern Ireland Act 1998, s. 4 (5)

9 Northern Ireland Act 1998, s. 18 (5). Part III deals in detail with the setting up of the Executive which contains ten ministerial office-holders in addition to the First Minister and his Deputy.

10 Under the Scotland Act 1998 the Scottish Parliament has a ‘tax-varying’ power to the extent of a supplementary income tax of up to 3p per pound; s. 73(1) provides for this in somewhat opaque terms.

11 For examples see Hazell op. cit., ch. 7.

12 Local Government Act 2000. For a summary of its more important features see Ian Leigh op.cit., in particular ch. 7. Also N. Rao, Reviving Local Democracy, Cambridge, Polity Press, 2000, Modernising Local Government: Local Democracy and Community Leadership, DETR, 1998, and Modern Local Government: In Touch with the People, Cmnd 4014, 1998.

13 According to a report in The Times, 27 February 2001, only 23 local authorities in England were known to be actively considering an elected mayor.

14 See J. Tomaney, ‘The Regional Governance of England’, in Hazell, op. cit. for a summary of what has happened in relation to the regions since 1997.

15 The ‘West Lothian’ question, called such by Enoch Powell after the constituency of Tam Dalyell, the Scottish Labour critic of devolution in the 1970s who raised it, refers to the inequalities in the rights of Members of Parliament following devolution, e.g. that English Members no longer have a vote on matters devolved, and that similarly Scottish or Welsh Members can vote on all ‘English’ matters, but are unable to raise matters devolved to the elected bodies in their own nations. There is, of course, no viable answer to the question under the conditions established by the devolution legislation.

16 Human Rights Act 1998, s. 4(4)

17 ‘Remedial orders’ are dealt with mainly in Schedule 2 of the 1998 Act. Essentially they permit a statute to be amended quickly by a statutory instrument procedure.

18 For many illuminating comments on the approach to legal argument and judicial reasoning at the highest level of the judiciary in Britain see Robertson, D., Judicial Discretion in the House of Lords, Oxford, Oxford University Press, 1998.Google Scholar

19 Regina v S of S for the Environment and the Regions, ex parte Holding & Barnes plc and others, Queen’s Bench Divisional Court, 13 December 2000, The Times Law Report, 24 January 2001. The court found incompatibility with the procedural requirements of the Convention, but held the Minister’s actual decision to be valid under s. 6(2) of the Human Rights Act 1998. See Times Law Report, 10 May 2001, for details of the House of Lords decision reversing the High Court’s conclusions.

20 Art. 2 of the First Protocol to the Convention states that no person shall be denied the right to education. But it contains no hint of what this could mean other than a reference to the state’s duty to respect the rights of parents in relation to their religious convictions in the provision of education.

21 When giving evidence to the Joint Committee on Human Rights on 19 March 2001, Lord Chancellor Irvine appeared to be satisfied that the moderate f low of cases so far involving allegations of breaches of Convention rights demonstrated that the fears earlier expressed by critics of incorporation of the code had been unfounded. Only time will tell whether this is an optimistic view.

22 A House for the Future, Report of the Royal Commission on House of Lords (Chairman: Lord Wakeham), Cm 4534, January 2000. The report and all supporting evidence were also made available on a CD-rom.

23 It is nearly always necessary to state the size of the House of Lords in approximate terms to allow for the incidence of death and new creations. The ‘working House’ remains at about 400 members.

24 The appointment of 15 new cross-bench life peers recommended by the House of Lords Appointments Commission was announced on 27 April 2001. Though hailed in advance as ‘people’s peers’, it turned out that of this list of supposedly self-proposed persons only three were not already in Who’s Who and only one had not previously received an honour.

25 One of the reasons for using STV for the election of three Northern Irish representatives in the European Parliament has been to make it virtually certain that two Unionists and one Nationalist would be elected.

26 An ‘Independent Commission’ chaired by Lord Jenkins of Hillhead reported on the voting system in Cm 4090–1, October 1998.

27 The Committee on Standards in Public Life was established as a standing body by John Major in October 1994. It has had a wide remit to examine and report on standards of conduct in public life. In late 1997 its remit was widened by Mr Blair to allow it to look at the funding of political parties. Its report on this matter, The Funding of Political Parties in the United Kingdom, Cm 4057–1, came out in October 1998. Its recommendations were wide-ranging and many have been enacted in recent legislation on party finance, electoral procedures and referendums. Whilst the Committee favoured increasing some of the existing sources of public support for parties, it did not recommend a comprehensive system of public funding for parties.