One of the lessons of the new Labour years is that constitutional reform is best avoided.
One of the lessons of the new Labour years is that constitutional reform is best avoided. New Labour swept into office with total confidence that the British constitution could be easily
‘modernised’. Its 1997 manifesto mocked the Conservatives as follows: ‘The party which once opposed universal suffrage and votes for women now says our constitution is so perfect
that it cannot be improved.’ Thirteen years later, it was clear that Labour had fallen horribly foul of the law of unintended consequences.
Rather than ‘killing nationalism stone dead’, as had been promised, devolution made Scotland seem like another country to the rest of Britain, paving the way for the SNP’s
successes there. Even Tony Blair, a politician who does not normally lack confidence, now seems uncertain on the issue. In his autobiography he says plaintively of devolution, ‘I think it was
the right thing to do. I hope it was.’
Blair’s concern is easy to understand. What was meant to be a limited reform has already led to further transfer of powers to Edinburgh. It is hard to believe that more will not follow now
that Alex Salmond has a majority at Holyrood. Devolution is starting to look like a ‘slippery slope to independence’, just as John Major predicted.
Labour’s other great constitutional reform, incorporating the European Convention on Human Rights into law, has upset the balance of power between the judiciary and the other branches of
government. This country’s common-law legal system is unused to the broad, Roman-law-style rights set out in the Convention. As a consequence, the Human Rights Act has proved particularly
sensitive to judicial interpretation. And this has set the stage for a constitutional clash between the executive and the judiciary.
The House of Lords, meanwhile, remains only half-reformed. Despite the promises in Labour’s 1997 manifesto, hereditary peers still sit there — albeit in smaller numbers — and
prime ministers have been creating life peers at a rate that would have struck even Henry VIII as excessive.
Despite these salutary lessons, Nick Clegg still wants to pursue a programme of radical constitutional reform. His party’s liberal, rational soul is offended by Britain’s organic,
unplanned system of government. Lib Dems want to codify and rationalise our constitution: to put it down in a neatly written document.
Clegg’s problem is that, in coalition, he can only do piecemeal reform. He can’t create the perfectly logical system that he wants, because his terms of reference are so constrained. As
he himself has said, ‘What we are trying to do — it is not an easy balance to strike — is to introduce reform while maintaining a certain degree of continuity with where we have
come from.’
Clegg’s attempt to change the upper house is, by necessity, limited to the issue of how its membership should be selected. To the frustration of some of those closest to him, he hasn’t
even explored the far more fundamental question of what its role should be.
The draft bill on House of Lords reform prompts Clegg’s colleagues to wonder why he is even bothering. In the introduction, he concedes that the Lords currently ‘performs its work
well’. The summary of the bill then declares that the reformed House of Lords ‘would have the same functions as the current House’ and that after reform there would be no changes
to the Lords and Commons relationship.
In reality, a mainly elected Lords would have a very different relationship with the Commons. A fully reformed second chamber would feel that it had more legitimacy than it now does; it would not
be so inclined to back down. This is why so many MPs, and even ministers, remain privately opposed to any change. In time, a constitutional confrontation would follow, the outcome of which would be
far from certain.
The legislative supremacy of the Commons is built on distinctly shaky legal foundations and could well collapse in the face of an elected second chamber. As with devolution for Scotland, Lords
reform would turn out to be the beginning of a process — perhaps even the process of unravelling this country’s whole constitutional set-up.
There are other, less high-minded reasons why Clegg should steer away from these reforms. First, they would be remarkably difficult to get through parliament. The Lords believes that it does its
job very nicely thank you, and would knock back attempts at change. As one crossbencher said to me recently, ‘We’re a mild-mannered bunch but we’ll die in a ditch over
this.’
Such opposition would leave the coalition with little option but to use the Parliament Act to force the bill through. But it is debatable whether this act can be deployed to secure major
constitutional change. A lengthy court case would almost certainly ensue if it was applied to this question.
If Clegg were to be drawn into a protracted tussle over changes to the second chamber, it would make the Liberal Democrats look like a branch of the Electoral Reform Society rather than a serious
party of government. While the economy remains so fragile, the Deputy Prime Minister should not be seen to be fiddling with the constitution. To his credit, Clegg himself grasps this point
— which is why the Lib Dems have placed so much more emphasis on the NHS than on Lords reform since their defeat in the AV referendum.
The case against pressing on with these constitutional changes is so strong that many in the coalition think that Clegg will quietly abandon them at some point. As one Tory close to David Cameron
puts it, ‘I think Nick is beginning to realise why House of Lords reform has been left as unfinished business for the past hundred years.’
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