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Twenty questions about the UK constitution

What does sovereignty really mean? What rights and freedoms do we have? How do we protect them? Could Britain become a federal state? Or will Scotland become an independent nation again, inside the EU, and England leaves the EU?

The UK is going through a process of constitutional change in ways that few people know or understand. At the last election several parties proposed a constitutional convention, but they failed to win a majority in the Commons. Instead the Conservatives won a mandate to press ahead with several big constitutional changes which could bring about the biggest change to the UK since we joined the European Community in 1972, the end of Empire or independence of the Republic of Ireland in 1922. Or not. It is possible that a combination of the internet, independent-minded MPs and an abundance of local initiatives changes the constitution by stealth, yet again.

This note discusses some of these constitutional changes and opportunities for people to have a say, as a contribution to the ESRC Knowledge Exchange about the constitution. This is a follow-up of my blog before the election on remaking the constitution.

I suggest that before we can have a constitutional convention we need to widen the “constitutional conversation” about power, responsibility and accountability in Britain at different levels, from local to global, and the kind of state people want and need.

Challenges to the constitution

Constitutional change is a process, occasionally marked by symbolic events and laws like the Magna Carta, the Petition of Right in 1628 and Bill of Rights 1689 in England; the Declaration of Arbroath in Scotland; the Union with Scotland 1701, Union with Ireland 1800, the Reform Acts from 1832 to 1969, Parliament Acts 1911 and 1949, various local government acts, the European Communities Act 1972, Human Rights Act 1998, Scotland Act 1998, Government of Wales Act 1998 and House of Lords Act 1999.

Britain’s constitution is a loose collection of conventions, documents and treaties, including recurrent appeals to “ancient rights and freedoms” as well as Royal Prerogatives (exercised largely by the government), and common law interpreted by judges and civil servants. It is held together by costume drama, myth and a strong central state which collects 95% of tax revenues and redistributes them to local government, Scotland, Wales, public services and transfer payments. This has been very powerful and resilient, but it is vulnerable to several potential challenges:

  1. a sustained demand for greater autonomy from Scotland, and even more if Northern Ireland and Wales also demand more powers and resources;
  2. an English backlash to greater autonomy for Scotland;
  3. demands from local authorities for greater control over public spending and services in their area, possibly on a regional basis, as in Greater London or Greater Manchester (the “Northern Powerhouse”);
  4. a financial or organisational crisis in one or more major public services, such as the NHS, prisons or schools, if the combination of greater autonomy, looser accountability and spending cuts lead to breakdowns in services or scandals.

Over the next five years the UK Parliament will make (or avoid) decisions on at least 20 constitutional questions which will affect our lives. These include A. piecemeal changes before Parliament; B. unresolved issues which could become a political issue at any point; C. problems in global governance and D. three Big Questions which arise from the others. I will briefly discuss each of these below:

  1. Piecemeal reform could

The Government’s Manifesto and Queens Speech promise at least six reforms with constitutional implications. Click on links for more details and get email updates from Parliament. It is possible to influence these measures by working with members of the House of Commons, Lords and organisations campaigning on them (no link means they have not yet been presented but can still be influenced by talking with relevant officials, ministers and MPs):

  1. Greater devolution to Scotland and Wales: will these measures create a durable new settlement between the nations of Britain, or are they a stepping stone towards full independence for Scotland in ten or twenty years? – And could amendments to the Scotland Bill bring in votes at 16 or other constitutional principles for the whole UK?
  2. Cities and Local Government Devolution Bill, decentralization to city regions and elected mayors: could this be the start of strong regional government capable of reviving the regions of UK? Will it produce strong, experienced regional leaders who challenge the centre?
  3. English Votes for English Laws (EVEL): will this increase conflict with Scotland and hasten the break-up of Britain?
  4. A referendum on EU membership, about which campaigning has begun: is Britain better off staying in Europe and pursuing reform from within, or leaving? Will the referendum require a majority in each of the nations of the UK? Will under 16s be able to vote, as in the Scottish referendum?
  5. A British Bill of Rights to replace the Human Rights Act: this is high on Mr Cameron’s priorities: could this weaken international oversight of human rights?

Other piecemeal reforms which affect the constitution are:

  • A Bank of England Governance Bill to strengthen the governance and accountability of the Bank of England: (and will it become Central Bank of the UK?)
  • A Trade Union Bill requiring 50% turnout voting for union ballots and 40% of those entitled to vote must vote for industrial action in certain essential public services
  • The size and number of parliamentary constituencies:
  • Representation of the People (Young Persons’ Enfranchisement and Education) Bill: a private members’ bill due to reduce the voting age to 16 and make provision about young people’s education in citizenship and the constitution, to be debated on Friday 11 September 2015. To find out more contact its sponsor, Vicky Foxcroft.
  1. Unresolved constitutional issues
  1. House of Lords reform: with over 765 members this is the second largest legislative chamber in the world, after China’s National People’s Congress (2987 members), and entirely unelected: isn’t it time for a new approach to reform?
  2. Voting system: the SNP won 56 seats (8.6%) with less than five percent of the vote (4.7%) while UKIP won just one seat (0.2%) with more than twice as many votes (12.6%). Labour’s vote increased by 1.4% but it lost 26 seats. The Conservative vote increased by less than one percent (0.8%) and gained 24 seats, winning 51% of seats on 37% of the vote (see Electoral Reform Society report on 2015 election): does the UK need a system of proportional representation?
  3. The BBC Charter is being reviewed and due to be renewed: should the BBC’s public nature, objects and constitution be recognised as a unique part of the British constitution?
  4. NHS England has a constitution and legal rights for citizens, which most people don’t know: should it be recognised as part of our constitution?
  5. Police and Crime Commissioners polled just 15% when first elected in November 2012: have they worked, or would it be better for democratic oversight of RCC’s to be part of elected regional government, as in London?
  6. The school system in England has been fragmented into many different kinds of school, many of them semi-autonomous with oversight from Whitehall: is this working? Or would it be better for democratic oversight to be part of elected regional government, as in Scotland? Can schools become the constitutional foundations for a democratic learning society?
  7. What is the role of new or re-discovered forms of democratic participation, such as direct-, deliberative- and digital-democracy, including community planning, participatory budgeting, Transition towns, online petitions, crowd-sourcing and other ways of taking part in politics?
  1. Issues of global governance

The UK is an active and sometimes constructive participant in global governance, as a member of NATO, the Permanent five of the UN Security Council, the G7 and many other global forums. At least four critical areas of global governance will be addressed over the next five years:

  1. A new global agreement on climate will be decided in Paris this December (UNFCCC): will this include serious commitments to de-carbonise the economy and provide funds for sustainable development by the world’s poorest countries?
  2. The EU and US are negotiating a new transatlantic trade deal (TTIP), including Investor-State Dispute Mechanism which allow companies to sue states: will international trade rules weaken democratic accountability and strengthen international finance and corporations? Or can it provide the basis for democratic accountability of international trade?
  3. This autumn the UN General Assembly will vote on 17 Sustainable Development Goals (SDGs), as targets for the whole of humanity: are these norms part of a new “global common law” which is creating a new international settlement? How will the UK’s governments translate these into domestic policy?
  4. Meanwhile terrorism, cyber-attacks, illegal migration, infectious diseases and other threats are driving nation states to create barriers and strengthen international mechanisms to protect richer areas of the world from their poorer neighbours: are we seeing the creation of global apartheid, based on national identity rather than overt racism? Or will it unite rich and poor countries of the world in creating a new global settlement based on our common humanity?
  1. Big questions

Four big constitutional questions arise from these considerations:

  1. How do we connect the many levels of governance from the local to the global in ways that work for people?
  2. Do we need a federal approach to the nations and regions of the UK?
  3. Do we need a codified constitution, as proposed by the Constitutional Reform Select Committee? And if so, what is the best way of bringing together the many different levels of governance and strands of debate in a coherent way?
  4. Are the people or is Parliament sovereign? And if so, how is the sovereignty of the people protected and enacted?

Our constitution will change radically over the next five to ten years. I suggest we will make more progress if we free ourselves from the myths of Parliamentary Sovereignty and decide how the people’s sovereignty can be expressed through Parliament. But that’s another subject.

  1. John Hartigan
    John Hartigan11-12-2015

    An analysis of general election manifestos by the major national parties since 1970 has shown that all significant constitutional changes were included in the respective manifestos. This includes joining Europe (Conservative manifesto 1970), the referendum for staying in Europe in 1975 (Labour October 1974), the devolution referenda of 1979 (Labour October 1974), reform of the House of Lords (Labour 1997), the Scotland Act 2012 (Conservative 2010) and, most fundamentally, the devolution referenda of 1998 (Labour 1997). A referendum on Proportional Representation was held in 2011 and was defeated.

    The political fabric of the nation has relied upon this unwritten principle of consent to constitutional change. Each government, whether Conservative, Labour or Coalition, could claim a mandate for these fundamental changes. Each voter had the opportunity to vote for an alternative party if they did not agree with the proposed change. This is a democratically unimpeachable process and fundamental to the rule of law and respect for the state.

    Independence is a matter reserved for the UK Parliament. The general election manifestos of 2010 were silent on Scottish independence, except for the SNP. With the Scottish Parliament elections of 2011, the UK Parliament was presented with legislation by the UK Government to authorise an independence referendum for Scotland. Only six MPs (SNP) could claim a mandate to legislate on this matter – perhaps the most profound question to be put before Parliament in three hundred years.

    Whilst the vast majority of the UK electorate, myself included, would probably have agreed with Parliament’s decision, this was a departure from constitutional practice.

    The implications are profound:
    – The UK Parliament has set a precedent to make constitutional changes without consent. This is harmful to our democracy.
    – Parliament had the power but not the right. Thus, whilst technically legal, the validity of the referendum was open to challenge.
    – Had there been a Yes vote, the UK Government would have been bound by the result; the UK electorate would not.

    The process for a potential second referendum is unclear – the 2015 manifestos were again silent on independence. Consequently no MPs, even SNP, would have a mandate to legislate for a second referendum during the current Parliament. This is not widely understood and may lead to false expectations when Scottish voters go to the polls in May 2016.

    Restoration of the principle of consent for constitutional change is a fundamental step in restoring faith in the Union.

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