University 18 Yrs + | Constitutional Change

What is the Significance of Constitutional Change since 1997?

The traditional view is that Britain’s unwritten constitution changes gradually in order to adapt to social and political changes.

The reluctance of the Thatcher and Major Governments make changes may have led to a build-up of pressures when the Blair Government came to office but, even so, the changes since 1997 have been considerable and continued under the Coalition and Conservative governments.

Robert Hazell (Parliamentary Affairs Vol. 60 No. 1, 2007) argues that change has developed a dynamic of its own, beyond the original changes made by the Governments.

For example:-

• Devolution to Scotland and Wales is not only established but has led to further pressures for devolution and these have been carried out in the Government of Wales Act, 2006, and the Scotland Act, 2012. Despite hostility from London about the use of the term the First Ministers in Edinburgh and Cardiff are seen as the Prime Ministers of their countries. The existence of a Scottish Parliament allowed the SNP to form the Government of Scotland and push for a referendum on independence which was lost in 2014. Devolution intensified the issue that has been called the West Lothian Question, which is whether Scottish and Welsh MPs should be able to vote on English MPs when English MPs cannot vote on Scottish and Welsh issues. In 2015 this appeared to be remedied under EVEL, English votes for English Laws. Scotland now has further devolved powers around raising taxes and the issue of a second referendum since the decision by the UK to leave the European Union is never far away.

• The removal of the hereditary peers from the House of Lords led the remaining peers to see the House as more legitimate and they have been more ready than before to amend Government legislation. The possibility of an elected House raises questions about the relationship between the Commons and the Lords.

• The 2016 Referendum saw the UK vote to leave the European Union. To do so Article 50 of the Lisbon Treaty would be triggered. A few months after the result two members of the public argued that the decision to trigger Article 50 should not be in the hands of the Government, using prerogative powers, but be voted on in Parliament. They won their case with the High Court prompting an appeal by the Government at the UK Supreme Court attended by the Attorney General. This illustrates a new constitutional argument of whether the will of Parliament is sovereign over the will of the people who made a decision in the referendum.

• The Human Rights Act, the creation of the Supreme Court and the removal of control of the judiciary from the Lord Chancellor, a government minister has changed the balance of power between Parliament, Government and Judiciary. The balance of cases before the Supreme Court will now change so that it deals with more constitutional issues.

• The Fixed Term Parliament Act has changed the process of Government transition and formation with unpredictable consequences if no party has a majority in Parliament.

Vernon Bogdanor ( Parliamentary Affairs Vol. 57 No. 4, 2004) argues that constitutional change happens as a result of political factors.

Devolution appeared as an issue before 1914 because of the need for Irish Party support in Parliament by the Liberal Government and after 1974 because the rise of the SNP threatened Labour’s electoral dominance in Scotland.

When the two party system was in place between 1935 and 1974, Labour and the Conservatives were able to alternate in running a system with a strong Executive and so neither had any interest in changing it.

The emergence of UKIP into the party system pushed the Conservative leadership into a referendum on Britain’s relationship with Europe. Some very short term political decisions have had constitutional effects.

The Liberal Democrats wanted a fixed term Parliament so that David Cameron, Conservative Prime Minister, could not call an election after a year or so if he thought from the opinion polls that the Conservatives would get a majority.

Tony Blair thought that the Lord Chancellor’s Department was inefficient and rushed out a press release before Christmas proposing to abolish it but the fall-out from this was to change the legal system.

Senior judges were on an away-day with civil servants when the announcement was made and, presumably out of reach of a mobile phone signal, had to crowd round the phone in the local pub to hear what the Government was proposing.

Two Criticisms of Recent Constitutional Change

Writers have made two further and related criticisms of recent Constitutional change:

It is piecemeal with little thought about the connections between changes. Devolution has changed the nature of the unitary state and undermined the Westminster model with different policies being carried out in each nation but there is no thought, for example, as to what the implication are for the composition of a reformed House of Lords or the Supreme Court (there is no requirement to have a Welsh judge on the panel) . A state with new checks and balances between Europe, the Judiciary, Parliament and the Executive has emerged but there is no clear plan as to how all this is to work. Although first past the post continues in general elections, there four different proportional electoral systems for other types of elections.

There is no narrative as to what Constitutional Change is about. Blair had the idea of modernisation but this was too vague to give a clear explanation. Vernon Bogdanor (Political Quarterly Vol. 81 No. S1, 2010) makes the very important point that the constitutional changes have redistributed power between different elites in the key institutions but has not addressed the problem of decentralising power downwards to the people or addressed the disenchantment that there now is with the political system.