on constitutional reform
Britain has faced over the last twenty years a blizzard of constitutional change. In most countries it would count as a revolution. It is driven by a theory called ‘the separation of powers’. This is an old obsession of political theorists, derived from a French philosopher’s misunderstanding of the British system in 1748. It has been touted round every country in the globe from Cambodia to Cameroon. The idea, of course, is that no part of the system should be too powerful: that the executive (in our case the Prime Minister and his government), the legislative (Parliament), and the judges should each have separate, independent and equal powers, elected or selected on different bases. This is what the American founding fathers did to their legislative branch (Congress), their executive (the President), and judiciary (the Supreme Court). And they condensed it all into a document shorter than two facing pages of the Herald. But that – as they knew well – has never been the basis of the British constitution.
In Britain, after the monarch was challenged by Parliament, power fell into the hands of the Prime Minister. In theory, he was constrained by ‘cabinet government’, an ‘independent’ civil service, ‘the rule of law’, and ‘parliamentary sovereignty’. If he wanted to introduce a new law, it was examined by bill committees and debated, amended, and scrutinised by Parliament. And ultimately the Commons could refuse to pass it. But none of this amounts to a fraction of the constraints on the executive of any mature democracy. It is very unusual for a British Parliament to reject full government legislation. Ninety-five times out of a hundred, the Prime Minister appoints all the Ministers, directs the civil service, commands the legislation to be drafted, and drives it through Parliament with his party whips.
Constitutional theorists have long been uneasy with our lack of ‘separation of powers’. They feel the ‘elective dictatorship’ of the Prime Minister is theoretically dangerous. But it hasn’t proved so for three hundred years. In fact it has worked well. Despite all this executive power, Britain remains a very free society. And the government can drive through its legislation with far more efficacy and confidence than any democracy in the world. If David Cameron wants to fund the IMF he can. Barack Obama cannot. If the British PM decides an austerity package is the answer, he can implement it immediately. That is not the case if you are Obama, or a Greek, or even an Italian leader, in whose countries legislatures can – and often do – refuse the reforms. The markets recognise this, which is why even when the British economic figures are not good, our credit rating remains high. The Budget will always be passed and implemented. And British voters generally like the fact that if their party wins nothing will prevent it from pushing through its manifesto.
But almost all the constitutional change of the last twenty years undermines our system. Reform after reform has tried to make judiciary and Parliament more independent and weaken the executive. This was one of the reasons why our old legal authorities, the Lord Chancellor, the Law Lords and the Privy Council were remodelled into a Ministry of Justice and a Supreme Court. The Prime Minister has lost his power to appoint select committees (they are now elected), and he has lost his control over honours. He is about to lose the ability to appoint people to the House of Lords (it is proposed that it should become – in line with our American yearnings – an elected ‘Senate’). The fixed-term Parliament has taken away his power to dissolve Parliament. A new back-bench business committee allows MPs to directly challenge the government programme every week. And all this is before you consider the almost entire loss of power over Scotland, or the constraints imposed by the European court of Human Rights and EU regulations.
On the surface this seems fine. We have long gloried in the piece-meal evolution of our constitutional settlement. While France endured terror and counter-revolution in an attempt to perfect five different republics, we muddled through without bloodshed. Our changes have always happened un-systematically through Reform acts and Parliament acts. And we haven’t missed not writing a new constitution. But in the modern world the vast power of our government to alter the rules of the political game is dangerous. The public has lost its respect for and, to a large extent, its interest in Parliament. MPs feel they have less time to ruminate on historical principles. Too few people are engaged in these constitutional debates. Instead constitutions have become a minority interest for theorists like the foreigners who rewrite the constitutions of East Timor or Afghanistan. In each case, buzzwords such as ‘accountability’, ‘democratic best practice’, and ‘separation of power’ shove aside the social and historical reality. We cannot simply allow constitutional change to continue at this scale and pace in Britain. We must consider its long-term impact. I would prefer to stop us introducing constitutional change at all. But if the government insists on more changes, it should submit them (including the proposals on the House of Lords) to public referenda. Many things are broken, but our constitution is not one of them. Let it not become so.