"Britain’s Constitutional Reforms Trivial or Transforming"
Anthony Sampson Memorial Lecture at Queen Mary 30 April 2009 Britain’s Constitutional Reforms: Trivial or Transforming? It is a great honour to give this lecture in memory of Anthony Sampson, in the presence of his family. I remember devouring the pages of the Anatomy of Britain when it first appeared in the early 1960s. Inspired by the writing of Anthony and others from South Africa I helped at school to found branches of the Anti Apartheid Movement and of Amnesty International. I have always admired the sharpness of his observation and shrewdness of his conclusions, combined with his sense of the big picture. This is something I also admire in Peter Hennessy. From time to time he conducts another flight over Whitehall to chart the latest power structures under Tony Blair and Gordon Brown. Tonight I am going to attempt something similar. Tomorrow on 1st May Labour will have been in power for 12 years, and they may be entering their last year in office. It is a good time to evaluate their legacy, and their impact on the constitution. I am in no doubt that the constitutional reforms of the last 12 years will be seen by historians as New Labour’s greatest single achievement. I think Peter agrees. But it is not a view shared by all our politics colleagues. Some have criticised their constitutional reforms as being trivial and ineffective. What I am going to argue is that, although some of the reforms were implemented half heartedly, and some are still incomplete, their combined impact has transformed the British constitution. And it is a dynamic and continuing process, with further changes still to come. I will go through the reforms item by item, starting with devolution: in Scotland, Wales, and England. Then parliamentary reform, in particular reform of the House of Lords, and electoral reform. The Human Rights Act, the new Supreme Court and Judicial Appointments Commission. And finally freedom of information. [Forgive me if I miss out some items, like Northern Ireland, and touch only lightly on others: the main point is to view the whole.] Devolution So let us begin with a whistle stop tour round the nations of the UK, starting in Scotland. I want to give you a sense of the constitutional ferment going on in each part of the kingdom. In the Scottish Parliament elections in May 2007 the SNP gained just one seat more than Labour, and after abortive coalition negotiations with the Liberal Democrats Alex Salmond decided to form a minority government. He made a flying start. In August he published the White Paper Choosing Scotland’s Future – A National Conversation, which set out three broad choices for Scotland: the status quo; an extension of the powers of the Scottish Parliament; or full independence. This soon provoked the unionist parties into fighting back. Labour, the Conservatives and the Liberal Democrats joined forces in the Scottish Parliament to use their parliamentary majority to establish a Commission on Scottish Devolution. Sir Kenneth Calman was invited to chair it, and in April last year the commission started work. It is looking at possible changes to the devolution settlement in Scotland, and the funding arrangements. In December the commission issued an interim report 1 which is a useful guide to their thinking. They are exploring how much scope there is for greater divergence in health, education and welfare policy, while retaining what they call a ‘common social citizenship’ across the UK. They have identified a list of possible subject areas where further powers might be devolved. Don't expect too much change on that front, because the devolution settlement is already generous. More significant are the changes the commission is likely to propose to the funding arrangements, to make the Scottish government financially more autonomous and fiscally more accountable to the Scottish people . Running quite separately from the Calman Commission has been Alex Salmond’s national conversation about the wider options, including independence. This initially generated a lot of loose talk about the possibility of independence, much of it wildly exaggerated. We looked hard at this in a research project and subsequent book we wrote on the Scotland’s path to independence, and concluded that there are at least four major hurdles that the SNP have to clear before Scotland might become an independent country. First, the SNP would need to have an overall majority in the Scottish Parliament to carry the necessary legislation to hold a referendum on independence. This was demonstrated last month when they lost a motion in the parliament about the desirability of holding a referendum. Unless the other parties go into meltdown, it is unlikely that the SNP will ever have an overall majority on their own, because of the Scottish Parliament’s proportional voting system. Second, the referendum will not necessarily be carried. Opinion polls for the last 10 years have shown support for independence bumping along at around 25 to 35 per cent, and this has been unaffected by the formation of the new SNP government. Support for the SNP in Scottish elections simply means support for an alternative government to Labour, and may not translate into support for independence come referendum day. Third, the referendum proposed by the SNP in their white paper would simply authorise the new Scottish government to start negotiations with the British government about independence. That is all they can do, to stay within the powers of the Scotland Act 1998. In our book we argued for precisely such a referendum, to trigger the negotiations; but we also argued for a second referendum, once the negotiations had been concluded. The Scottish public would by then be much better informed about the implications and the terms of independence; and many of the terms might prove to be unwelcome. Most unwelcome of all, we concluded that Scotland would have to re-apply for membership of the EU. [In international law the rest of the UK would be the successor state which would remain in membership, and Scotland would have to re-apply, possibly joining the queue behind Croatia, Macedonia and Turkey.] The fourth obstacle is that independence can only be granted by Westminster: it is not within the competence of the Scottish Parliament unilaterally to declare independence. Surprisingly, this obstacle is likely to be less challenging than the others. Successive British prime ministers, including staunch opponents of devolution like Margaret Thatcher and John Major, have nevertheless recognised the Scottish people’s right to self-determination. So did supporters of devolution like Donald Dewar. Having long 2 accorded that right to the people of Northern Ireland (and having recently re-affirmed it in section 1 of the Northern Ireland Act 1998), it would be difficult to deny the same right to the people of Scotland. So the last hurdle is the lowest of all. But to reach the last hurdle there are some much bigger ones to clear first. For the SNP, winning the Scottish elections is only the first step, and they may not manage to progress further down the long road towards independence. They will have to settle instead for the prize of governing Scotland. That is not necessarily to be spurned. It is what the Catalan and Basque nationalist parties have been doing for the last 25 years; but Catalonia and the Basque region are still part of Spain. Wales I will touch more lightly on Wales simply for lack of time. Here the original devolution settlement was significantly weaker than in Scotland. The Welsh Assembly had no powers of primary legislation, and remained reliant on Westminster to set the legislative framework for any significant new policies. We criticised that arrangement as weak and unstable, and too dependent on Westminster. I am glad to report that it has been completely replaced, in the Government of Wales Act 2006, with a new settlement under which the Assembly will gradually acquire legislative powers, but in a tortuous and piecemeal way. The main obstacle to progress has been the diehards in the Wales Labour party, in particular the group of Welsh Labour MPs at Westminster. But things are now speeding up. Labour did badly in the Welsh elections in 2007, winning only 26 seats in the 60 member Assembly. We now have the unusual spectacle of a coalition between Labour and Plaid Cymru. As part of the coalition agreement Labour signed up to a joint commitment to move ‘as soon as practicable’ to a referendum on the transfer of full legislative powers to Wales. The new Welsh government has established an All Wales Convention, chaired by Sir Emyr Jones Parry, to prepare the way for the referendum. Here too there are four hurdles before the Assembly might receive full legislative powers. Under the terms of the 2006 Government of Wales Act, a referendum can only take place if approved by two-thirds of Assembly Members, leaving the Labour group with an effective veto. Next the British government must agree to lay the necessary orders before the Westminster Parliament. Both Houses of Parliament must then give their approval. But if those three hurdles can be surmounted, it seems likely that by 2011 Welsh voters will have the chance of deciding whether they want their own law-making Parliament. Opinion polls have consistently shown that the people of Wales do want law making powers, so here too the last hurdle is probably the least significant. [More problematic will be the size of the Welsh Assembly if and when it gets law making powers: with only 60 members it is too small to manage effective scrutiny of legislation as well as its other functions, and it risks becoming an executive dominated body.] England 3 Let us now turn to England. England is the gaping hole in the devolution settlement. We have studied the implications of devolution for England closely over the last ten years, and in 2006 we brought our findings together in a book called The English Question. We divided the English Question into two: whether England needs a stronger political voice, to balance the louder political voice now accorded to Scotland and Wales; and whether England too would benefit from devolution, by devolving power within England. To devolve power within England, the government has experimented with regional assemblies, city regions, and now regional ministers. Elected regional assemblies are dead for the time being, following the resounding defeat by 4:1 of the government’s proposals for a North East regional assembly in 2004. Dead for now but not necessarily for ever: remember what happened to devolution in Wales, where the government’s proposals were also defeated by 4:1 in the first devolution referendum back in 1979. In summer 2007 as part of his new government Gordon Brown appointed nine new regional ministers, one for each of the English regions including London. They are a group of junior ministers tasked with representing their regions in Whitehall and Westminster, while also representing central government in their regions. They fulfil these roles alongside other full time junior ministerial posts, so their impact is unlikely to be great. My sense is that they spend more time representing central government in the region rather than the other way round. They might have been checked in this tendency if Parliament had managed earlier to establish regional committees to scrutinise them, as the government intended; but the parties could not agree on these committees, and they have only recently been established, with Labour members only. The key question is whether this attempt to give a stronger voice to the regions proves to be a centralising or decentralising measure. I fear that it is likely to be centralising, because of the focus on Whitehall and Westminster; but given the Conservatives’ strong opposition, it may be that regional ministers and regional committees also prove short lived. What about the other side of the English Question, whether England as a whole needs a louder political voice? Here the running has been made by the Conservatives, who have been searching for an answer since William Hague was their leader at the dawn of devolution ten years ago. Hague considered two possible answers: an English Parliament, and English votes on English laws. He flirted with the former before plumping for the latter, and in the 2001 and 2005 elections English votes on English laws was Conservative party policy in their manifesto. How to implement English votes on English laws has recently been considered by the Conservative Democracy Task Force headed by Ken Clarke. Clarke has put forward a compromise proposal, that Scottish MPs should not be allowed to vote at the committee and report stage of bills relating to England, when the detail is discussed. But they would be allowed to vote at second reading, when the broad principle is debated, and third reading, when the bill as a whole is voted on by MPs. Is this the magic answer to the West Lothian Question which has eluded all previous searchers? And can it be made to work? I don’t think so. The difficulties remain formidable, at both a technical and a political level. 4 The technical difficulty is identifying those English laws on which Scottish MPs cannot vote. Strictly speaking there is no such thing as an English law, in the sense of a Westminster statute which applies only to England. [The territorial extent clauses in Westminster statutes typically extend to the United Kingdom, Great Britain or England and Wales.] Many statutes vary in their territorial application in different parts of the Act. Is the Speaker to identify in advance those parts or clauses which are of interest to English members only? His rulings will be strongly contested, because many English policies have spillover effects for the rest of the UK. If the technical difficulties are daunting, the political difficulties are even greater. Proponents of special procedures for English laws tend to under-estimate just what a huge change would be involved. It would effectively create two classes of MP, ending the traditional reciprocity whereby all members can vote on all matters. It could in time lead to the creation of an English parliament within the Westminster parliament. [And after close fought elections, the UK government might not be able to command a majority for its English business, leading to great political instability.] These political difficulties cast doubt on the likelihood of English votes on English laws ever becoming political reality. It may be significant that David Cameron, in his speech on the Union given in Edinburgh in December 2007, made no mention of English votes on English laws. What might be giving him pause? By ending the equal voting rights of all MPs, the Conservatives could no longer claim to be Unionist, but would have become an English party. An English party does not sound like a party of government. The Conservatives might find it more expedient to reduce the numbers of Scottish and Welsh MPs, than to attempt the more complicated task of trying to restrict their voting rights. Research that we have done shows that Scottish and Welsh MPs have seen their workloads reduced since devolution, and I believe it would be justifiable to reduce their numbers. Following the precedent set during the first Northern Ireland Parliament from 1922 to 1972, their numbers might be reduced by one third. It would not eliminate the possibility of Scottish and Welsh MPs voting on English laws, but it would further reduce the likelihood of their votes being able to tip the balance. David Cameron faces some difficult tactical and strategic choices in deciding whether to support Clarke’s proposal. English votes on English laws is far more than just a procedural issue. It is seen by some proponents (Kenneth Baker is an example) as the precursor to an English Parliament. William Hague flirted with an English Parliament in 1999 but backed away. If the Conservatives now were to embrace a policy which led to an English Parliament, the issue might conceivably split the Conservative party, much as the Irish Question split the Liberals in Gladstone’s time. So I apologise for devoting so much time to this seemingly arcane issue; but it is potentially a big issue, with high political stakes attached, and I think Cameron is beginning to understand that. Reform of the House of Lords Let me come now to Parliament, starting with the House of Lords. The first thing to recognise is the major achievement of removing the hereditary peers in the House of Lords Act 1999: an anachronism which had persisted throughout the twentieth century, despite several previous attempts at reform. It has transformed the House of 5 Lords into a much more confident and assertive institution. Let me illustrate the contrast. In the 12 years of this Labour government it has been defeated only five times in the House of Commons: yesterday’s vote being the fifth defeat. In the House of Lords it has been defeated nearly 500 times. One in three divisions in the House of Lords results in a government defeat. The media rarely report that, but there is no doubt which House is the more effective in revising legislation. [And no surprises that the recent allegations about cash for amendments occurred in the Lords not the Commons. The NGOs and lobbyists know that if you want legislation amended, the Lords is the place to target.] The big change since 1999 is the fact that no single party has overall control in the Lords. The Labour and Conservative groups are roughly equal in number, with the crossbenchers and Lib Dems holding the balance of power. But the crossbenchers rarely attend, and research we have done shows that it is the swing votes of the Lib Dems which determine the result in nine out of ten divisions. The government could in theory create more peers until it has a majority; but it has said that so long as the Lords remains all appointed it will not seek to do so. This is a really important self denying ordinance, enshrining the Lords as a permanently hung chamber. Its importance has not been recognised, and the new rule lacks a name. It needs one, if it is to be recognised as a proper constitutional convention. So here is a small competition: what should we call the rule that that no single party should seek overall control in the Lords, to ensure that it gains lasting recognition as a constitutional convention? Of course removal of the hereditary peers was only the first stage in Lords reform, with the second stage being the introduction of elections. Blair was not keen on elections to the Lords; nor was his lead Minister Lord Irvine, so little happened on their watch. Things have picked up since Gordon Brown became Prime Minister. He is much more committed to constitutional reform than Blair. He also has the impetus of the March 2007 votes in the House of Commons, when on a free vote the Commons supported an 80 or 100% elected second chamber. For two years Jack Straw has been holding private talks with the other parties to try to broker agreement, and in July last year published a White Paper recording the outcome: the fifth White Paper on Lords reform since 1997. The cross-party group agreed on some fundamental principles, but disagreed on important details. There was agreement that members of the second chamber should be elected on a completely different basis from the House of Commons. They should serve long, non-renewable terms of office of 12-15 years, with elections in thirds; but there was no agreement on size of the new second chamber, the electoral system, or the timing of elections. The Conservatives would like a chamber of 250-300 members, elected by first past the post; the Liberal Democrats favour STV or open lists. The government proposes a house of 400-450 members, and invites views on the voting system. In the past they favoured regional lists. The white paper discloses some important advances in government thinking. It repeatedly states that the government welcomes a stronger and more assertive House of Lords. It acknowledges that an elected second chamber is no threat to the 6 primacy of the House of Commons. And it concludes that there should be no change to the powers of a reformed second chamber. But this is combined with some interesting omissions. There is no mention of the current convention that no political party should seek an overall majority in the House of Lords; and no discussion of the merits of a part time versus a full time House. The assumption is that in future all members will be full time, whether elected or appointed. What will happen in the next Parliament? Although the parties’ election manifestos will contain broadly similar commitments, to introduce a significant elected element, there are still important differences between them. So I’m afraid there is no prospect of implementing the next stage of Lords reform with all party support. What may happen instead is further incremental reform along the lines of David Steel’s bill, re- introduced this session, to put the House of Lords Appointments Commission on a statutory basis, remove the remaining hereditary peers, and allow peers to retire. So elections to the Lords will happen only in one of two circumstances: if Labour win an outright majority, with a strong commitment to further Lords reform; or if the Lib Dems hold the balance of power, and can force Lords reform onto the agenda of the governing party as a condition of their support. Electoral reform That brings me neatly to the prospects of electoral reform for the House of Commons, because the two issues are closely linked. Labour’s 1997 manifesto boldly stated: “We are committed to a referendum on the voting system for the House of Commons. An independent commission on voting systems will be appointed early to recommend a proportional alternative to the first past the post system.” The independent commission was duly appointed, chaired by Roy Jenkins, and in 1998 it recommended a semi-proportional voting system, dubbed AV Plus. The plus was for a relatively small number of top-up seats—around 15 per cent of the whole—to ensure a limited degree of proportionality. In Labour’s 2001 manifesto, the commitment to the referendum was significantly modified. In its place was a commitment to review the experience of the new voting systems, introduced in 1999 for the devolved assemblies and the European parliament. The manifesto then stated, deadpan: “A referendum remains the right way to agree any change for Westminster.” There was little support in the cabinet for holding a referendum, with only three cabinet ministers known to be in favour of proportional representation (PR), so the commitment was shelved. The 2005 manifesto contained almost identical wording. Conventional wisdom is that electoral reform is likely only to happen in a hung Parliament. In our recent book Constitutional Futures we looked hard at the different possibilities, and concluded that in a hung Parliament electoral reform would be displaced by Lords reform. The Lib Dems would hold the balance of power, and would be demanding PR for the Commons and elections for the Lords. Labour or the Conservatives in response would agree to elections to the Lords before conceding PR for the Commons. And they would argue, with justification, that it makes sense first to decide the electoral system for the Lords, before changing the electoral system for the Commons, because the two electoral systems need to complement each other. 7 It is worth adding a further cautionary note from Constitutional Futures. PR has become an article of faith for constitutional reformers. But it 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. With an extension of the present party system, the Liberal Democrats would be likely to hold the balance of power in both Houses. If they were part of a coalition government in the Commons, it would severely curtail Lib Dem opposition in the Lords. The second reason why Nirvana might be short lived is because 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. You would not think it from the way Parliament is portrayed by the media, but by comparative standards we have unusually independent minded parliamentarians, in both Houses. Look at the House of Commons vote yesterday: some 70 Labour MPs abstained, and 28 voted against. So the message is: PR could put that independence at risk. Human Rights Act I now turn to the Human Rights Act. Trivial, or transforming? There is a lively debate amongst academic lawyers about its effectiveness. Some like Keith Ewing claim it was unnecessary and futile; others lament the lack of a strike down power. Being lawyers they look mainly at the courts, and miss the Act’s effect on all three branches of government. The executive and Parliament engage in much more careful and systematic scrutiny of legislation for human rights compliance. From my contacts in Whitehall I am in no doubt about the effectiveness of the Act. It is taken seriously by government lawyers, and has imposed significant constraints on policy making. Every new policy is checked for human rights implications, and new legislation cannot be introduced into Parliament without a certificate of ECHR compliance – a certificate which is then scrutinised by Parliament’s Joint Committee on Human Rights. You can see from Tony Blair’s evident discomfort with the Act how it has begun to bite. He was also scared by a long running press campaign. The Sun, Mail and Telegraph have portrayed the Act as a charter for foreigners and scoundrels, and EU inspired to boot. (A historical travesty: the ECHR stems from the Council of Europe, not the EU, but let that pass). It has been a very successful campaign. Tabloid pressure led Tony Blair to attack court judgements under the Human Rights Act; and in a speech in June 2006 David Cameron went one stage further and promised to scrap the Human Rights Act altogether and replace it with a British bill of rights. Under Gordon Brown a British bill of rights is also the Labour government’s policy. We are now in the intriguing situation where all parties support a British bill of rights, but for different reasons. [For the Lib Dems it is longstanding policy to have a bill of rights as part of a written constitution.] For Brown it is part of his Britishness agenda, to be preceded by a British statement of values which will bind together the different nations and citizens of the UK. [Brown has also been a more stalwart defender of the Human Rights Act than Blair.] For Cameron it is a means to avoid the more awkward court judgements (mainly involving the return of suspected terrorists), by allowing a more flexible interpretation of the ECHR, under the Strasbourg doctrine of the margin of appreciation. Cameron hopes in human rights shorthand that a British bill of rights might be ECHR minus; but lawyers in the Conservative party like Dominic Grieve are 8 telling him it has to be ECHR plus. The ECHR is the universal floor below which no country can sink. Last August the parliamentary Joint Committee of Human Rights published a big report on a British bill of rights. They are strongly in favour of developing our own bill of rights, and for it to include social and economic rights, but as aspirations which are politically enforceable by Parliament rather than legally enforceable by the courts. The new Child Poverty Bill, which will set the target of ending child poverty by 2020, offers an example of such a right. Meanwhile the government has struggled painfully to develop its own ideas for a British bill of rights. After huge opposition in Whitehall the Ministry of Justice finally published its Green Paper last month, a year later than planned. It is a strange and philosophical document. It has a whole chapter on responsibilities, while protesting that rights cannot be dependent on responsibilities. And while claiming that the government wants a wide ranging debate, it appears to remove one important option by stating that “the Government does not consider a general model of directly legally enforceable rights or responsibilities to be the most appropriate for a future Bill of Rights and Responsibilities”. The weakest part is the plans for consultation. I tried to encourage the government to be imaginative, and set up a Citizens’ Assembly like the recent ones in British Columbia and Ontario, and give the Assembly the task of drafting a British bill of rights. At the least it could have established an independent committee to promote a national debate on a bill of rights, as the Rudd government has done in Australia. But no: the government merely invites responses to the consultation paper in the usual way, with no deadline. The sad fact is that the government has run out of time; it has run out of money; and it still wants to try to control the terms of debate. Most of you won't have heard that there is now a national debate on a British bill of rights. It is a debate which is going nowhere, at least in the rest of this Parliament. Independent Judiciary, and new Supreme Court The Constitutional Reform Act 2005 initially caused the judiciary great alarm, because of the clumsy manner of its announcement. But in the vigorous debates which followed the judiciary won a series of important concessions. The judges do not yet acknowledge it, but they have emerged immensely stronger. The office of Lord Chancellor has been retained, with a statutory duty laid upon him to uphold the independence of the judiciary. His role as head of the judiciary has passed to the Lord Chief Justice. The Lord Chancellor’s power to choose new judges has been severely curtailed by the new Judicial Appointments Commission. And the apex of the legal system is to be crowned with a new Supreme Court. The new Supreme Court opens in October, replacing the Appellate Committee of the House of Lords. Some believe that apart from the law lords crossing Parliament Square to their new building (Middlesex Guildhall) nothing else will change. It is true that it will be the same judges, with broadly the same jurisdiction. But the court will have a much higher profile once it has left the sheltered surroundings of the Lords. It is to have its own press officers, the law lords are to have more judicial assistance, and their website should be transformed. [Out will go the dry list of the names of the law lords, in order of precedence; in will come some account of their backgrounds, and even perhaps some photographs.] The three new law lords 9 appointed last month, Lord Justice Lawrence Collins, Sir Brian Kerr and Sir Anthony Clarke, are likely to be the last appointed with almost no public notice. It is a pity that there was no public discussion. There is still only one woman amongst the 12 law lords, Brenda Hale; these three vacancies offered an opportunity to appoint more women – an opportunity missed. The other thing which will drive up the court’s profile is its changing case mix. The new court is likely to develop a more open procedure for selecting cases. Out will go the commercial and tax and private law cases, to leave room for cases of constitutional importance: human rights cases, cases about the right to die, privacy, our relationship with Europe, and devolution cases. You can see that happening already in the mushrooming of human rights cases heard by the Lords. They are now the largest single category, at a quarter to a third of the total. All this will stimulate much greater interest in who the senior judges are and how they came to be appointed. Here I fear the reforms have taken a wrong turning. The discretion previously enjoyed by the Lord Chancellor has been drastically restricted, and from now on he is presented with a single name. Technically the Judicial Appointments Commission is an advisory commission, because the Lord Chancellor can reject the name and ask the commission to reconsider. He has never done that so far, and in practice it is an appointing commission. And it is largely the judges appointing their own. Although there is a lay chair (Baroness Prashar) and lay membership of the Judicial Appointments Commission, it is heavily influenced if not dominated by its judicial members. There is a risk of the commission playing safe, cloning the existing judiciary in terms of skills and experience, or worse still, operating Buggins’ turn for the most senior appointments. There was an element of Buggins’ turn in the three new law lords just appointed. I would rather the government had retained a wider discretion, with the Lord Chancellor choosing from a short list of three names; and I would like to have seen the legislature operating as a further check and balance, with Parliament holding scrutiny hearings for the most senior judicial appointees (Supreme Court Justices and heads of division in the Court of Appeal). Freedom of Information I come finally to freedom of information. The FOI Act 2000 was seen as a pretty restrictive and complex Act, with 27 separate exemption provisions to justify withholding information, where other Acts have about 15. In practice the FOI Act has proved a lot more effective than its critics supposed. The fees regime is unusable, so in effect requests are free of charge. And a public interest test runs through almost all the exemptions, giving the Information Commissioner far more leverage than if the exemptions were expressed in absolute terms. This has enabled him to hand down a series of rulings which have sent shock waves round Westminster and Whitehall: over MPs’ expenses (that one has run and run), and most recently the Cabinet minutes on Iraq. After the Information Tribunal upheld the Commissioner’s decision to disclose the Cabinet minutes on Iraq, the government eventually vetoed the order to disclose – as they are entitled to do under s 53 of the Act. So is the FOI regime not so open after all? We have recently two pieces of work comparing the UK regime with the operation of FOI in Australia, Canada, Ireland and New Zealand, and in both the UK comes out of the comparison pretty well. Just to 10 take the veto, which has been used just once in the first four years of the UK Act, that compares with its use 48 times in Australia, 14 times in New Zealand, and twice in Ireland. And in terms of access to policy papers, we reckon that the UK is more open than Canada, Australia and Ireland, and outshone only by New Zealand. Conclusion: future constitutional reforms It is time now to stand back and start to sum up. My whistle stop tour has inevitably been rushed and short on detailed analysis. But by reminding you of the range of the government’s constitutional reforms and their effects so far, I hope I have convinced you that they have been transforming, and not trivial. And you will have gathered that there is almost certainly more to come. Constitutional reform is not a static process. It is dynamic, it unleashes powerful forces which can lead to further waves of reform. In my final minutes, let me speculate what those might be. Gordon Brown, a much more committed constitutional reformer than Tony Blair, hoped to relaunch the constitutional reform programme with his Governance of Britain Green Paper in July 2007. His tragedy was that Blair had bagged all the big trophies: devolution in Scotland, Wales and N Ireland, removing the hereditary peers, the Human Rights Act, freedom of information. True, that left behind some unfinished business; but much of it was unfinished because it was genuinely difficult. There is no appetite in the Labour party for electoral reform. There are deep divisions within all the parties about the next stage of Lords reform. There are even deeper divisions about the desirability of a British bill of rights. So despite the Governance of Britain proclaiming Brown’s bold aspiration of a written constitution, with a bill of rights at its centre, in terms of substance he was left with scraps: regulating bits of the prerogative like the power to enter into Treaties, make war and manage the civil service. His Constitutional Renewal Bill, published in draft last year, was rumbled by the parliamentary Joint Committee which scrutinised it as nothing quite so grand as the title suggested. In this session it has not even been introduced, and the most we are likely to see is a Civil Service Bill. Brown has also been hugely overtaken by events. Despite his strong commitment to constitutional reform, the economic crisis is what has dominated his premiership, and is what he will be remembered for. What about the Tories? Well, although they are not thought of as constitutional reformers, they have accumulated some quite big commitments. The biggest is their commitment to hold a referendum on the new EU Constitution if it has not come into force by the time they are elected. We wait to see if the Irish solve that issue for them in the autumn. The Conservatives have a commitment to repeal the Human Rights Act, and replace it with a British bill of rights, which they want to entrench. That’s big. They have some big ideas about parliamentary reform. David Cameron wants to reduce the size of the House of Commons by 10 per cent, 65 seats. That’s big, and challenging to achieve in their first term as Cameron has promised. It will be counter balanced by some of Ken Clarke’s ideas for strengthening Parliament: reducing the number of Ministers, electing Select Committee chairment, more effective scrutiny of public spending. English votes on English laws will be big if they try to do it: bigger than they realise. And they talk big about decentralising in England: scrapping Regional Development Agencies, and giving power back to local authorities. In practice their first term will be dominated by the fiscal crisis and huge public 11 spending cuts. Watch out for populist measures, like culling quangos and reducing the size of Parliament, some of which will have constitutional implications. Guardians of our unwritten constitution In closing, let me offer three parting reflections on our unwritten constitution. First is the importance of constitutional guardians. The judiciary are vitally important, and their role will be more prominent with the creation of the new Supreme Court. Also of central importance is Parliament. But in guarding the constitution the second chamber is as important as the first, and should become more important. It is a classic role for second chambers, to be a constitutional longstop: over time the Lords should develop the role further, with the help of its new Constitution Committee. Other guardians within Parliament are the new Joint Committee on Human Rights, and the new Justice Committee of the House of Commons. Guardians within the Executive are also important, like the the Committee on Standards in Public Life. That links to the next point, which is the growing importance of an array of specialist constitutional watchdogs which have mushroomed in recent years as part of the process of constitutional reform. We now have a dozen specialist constitutional watchdogs: seven of them created in the last 10 years, four in the last five years. They are guardians of constitutional propriety, mainly in specialist corners of the constitution, but some operating more widely. The new ones are the Judicial Appointments Commission, already mentioned; the House of Lords Appointments Commission (which blew the whistle over cash for peerages); the Electoral Commission, which regulates elections and party funding; the Information Commissioner, who enforces the FOI Act; and the new Equalities and Human Rights Commission. They are a motley collection in terms of constitutional design, and badly need a closer relationship with Parliament and less reliance on the Executive; but that must be the subject of another lecture. Finally, the need for a written constitution. I am often asked if I am in favour of a written constitution, and people are surprised when I answer no. We are not going to get one, so at one level it is futile to make the case for one. But at a deeper level I am not convinced it would necessarily be a gain. Unwritten constitutions can be just as good as written ones, so long as they are nurtured and valued. What matters in a constitution is not so much the written text but the underlying values, and whether people are willing to stand up and defend them. Unwritten constitutions need guardians to protect and defend them and to explain their underlying values. That is a task not simply for the specialist guardians I have just described; it is a task that concerns us all. We should nurture our unwritten constitution as a precious part of our heritage; and as with the rest of our heritage, each generation should seek to pass it on in better order to the next. 12