More Constitutional Thoughts

In a recent radio programme, it was suggested that in the nineteenth century, while many other countries were adopting formal constitutions, people in England were so proud of Magna Carta as a sort of proto-constitution that they thought that Britain did not need anything else.

The speculation prior to the election about what might have happened if the result had been a hung parliament highlights the unsatisfactory nature of the UK’s uncodified constitution, key parts of which are are mere conventions. What happens if there is disagreement over conventions which have somehow developed over the years? How long does does it take for ‘what usually happens’ to mutate into a definite convention? How can a convention be enforced, if those in power choose to ignore it?

One can turn to the Cabinet Manual for guidance and a review of existing practice, but that is all; it does not necessarily provide hard and fast rules. For example, the final sentence of section 2.10 is “It remains to be seen whether or not these examples will be regarded in future as having established a constitutional convention.” At the end of section 2.19 it states “The Prime Minister is expected to resign where it is clear that he or she does not have the confidence of the House of Commons and that an alternative government does have the confidence.” Note the use of ‘expected’ rather than ‘required’.

The office of Prime Minister was not originally defined by any law; indeed, no decision was ever taken that the UK should have such a creature. At the start of the 18th century the monarch, as the head of the government, appointed a number of Cabinet ministers, who were answerable to the monarch, not to one of their own number. When George I became king, he initially attended Cabinet meetings but stopped, largely because he could not speak English. In 1721, following his successful handling of the crisis caused by the collapse of the South Sea Company, Sir Robert Walpole was appointed as First Lord of the Treasury, Chancellor of the Exchequer, and Leader of the House of Commons, and became, in retrospect, Britain’s first Prime Minister. However, the term ‘Prime Minister’ was initially used only unofficially and in a rather sarcastic way, and Walpole and other 18th century Prime Ministers rejected it. The first official use of the term was in 1878 when Disraeli signed a treaty as Prime Minister. Eventually the Ministers of the Crown Act 1937 gave legal recognition to the position of Prime Minister, as opposed to the office of First Lord of the Treasury, with which it has always been linked.

Initially it was the monarch who chose the Prime Minister, but a convention developed that the Prime Minister should be someone who can command the support of a majority in the House of Commons, and thus usually the leader of the largest party in the Commons. As the role of the Prime Minister developed, power gradually transferred from the monarch to the Prime Minister. The royal prerogatives, defined in the constitutional settlement that followed the Glorious Revolution of 1688 and still mostly formally vested in the monarch, are in reality exercised by the Prime Minister; theoretically, the Prime Minister advises the monarch and the monarch, according to yet another convention, always accepts that advice.

Given the extent of the powers which have become attached to the position of Prime Minister, can it be right that the question of who becomes Prime Minister in the event of a hung parliament can be decided on the basis of mere conventions? Is it reasonable to allow the party of government to change its leader, and thus the Prime Minister, in the middle of a Parliament without the approval of the electorate as a whole? Should some alternative arrangement be devised, whereby the electorate as a whole can decide specifically who should become Prime Minister, or perhaps President? At present, one vote every five years is all the ordinary voter gets with which to indicate their choice of MP for their constituency, party of government (with all its policies) and Prime Minister, as a package deal.

The Tories are proposing to repeal the Human Rights Act. The fact that they may well be able to do so, in spite of having been elected by not a lot more than a third of those who voted, and by less than a quarter of the electorate, points to another major flaw in the UK’s uncodified constitution. Although some Acts of Parliament, such as the Human Rights Act, may be considered as parts of the constitution, they have no special status, and can be amended or repealed like any other pieces of legislation, by simple majority votes in both Houses of Parliament.

With a good codified constitution, it should not be possible for Parliament to modify any part of the constitution. That privilege should be reserved to the electorate as a whole, who should be able to ratify or reject any proposed changes to the constitution in a referendum. While there have been occasional referendums in the UK, the cynical view might be that these are only held when the UK Government is hoping that the proposed change will be rejected (e.g. reform of the electoral system and Scottish independence); the Fixed Term Parliaments Act (2011) is clearly of constitutional importance but there was no question of a referendum being held to approve that, or to ask whether the interval between elections should be reduced to 4 years, or even to 3 years as in Australia.

The UK is in dire need of a complete constitutional overhaul. Changes are needed to the electoral system, to end the unjust ‘first past the post’ system which tends to freeze out smaller parties and to make the votes of those who live in ‘safe’ constituencies worthless. The House of Lords needs to reformed or abolished, perhaps along with the monarchy. Some kind of federal system is needed to accommodate increased devolution. In short, the UK desperately needs a coherent written constitution. However, I do not believe for one moment that this will happen. England is too (small ‘c’) conservative and too fond of archaic traditions and rituals. Above all, the present system suits the Establishment. For example, it is very unlikely that a government which has achieved an overall majority with just under 37% of the vote will want to change the voting system. All we can expect is some tinkering here and there, which may may make an already messy system even messier (e.g. devolution of powers in England to some cities, rather than all regions) or replace existing problems with new ones (e.g. EVEL ).

The only realistic way in which the people of Scotland can gain the benefits of a coherent, well designed constitution, which will promote such ideals as democracy and human rights, is through independence.

(My first ‘Constitutional Thoughts’ were posted on this site on the 7th of April last year.)


Cause for Rejoicing?

I do not normally use this blog to respond immediately to recent events, but rather to look at other issues which I have been thinking about for some time. However, I feel I have to say a few things about the election results.

I do not feel elated by the unprecedented landslide in Scotland, because I had been expecting it for quite a while. All the polls had been showing the SNP well ahead of Labour, and this was consistent with the surge in SNP membership since the referendum. Yet there was always the nagging thought that perhaps it was just too good to be true, and therefore I felt a certain amount of relief, mixed with a slight regret that it was not a clean sweep, when I saw the results.

My main feeling was a mixture of disappointment and anger, because I was definitely not expecting the Tories to win an overall majority. I consider that some of the policies pursued by the Tories over the past five years can reasonably be described as evil, and now those policies will be continued and perhaps extended, without whatever slight restaining effect the LibDems might have had. Perhaps the Tory win brings Scottish independence closer, but the price for that will be high.

I will shed no tears over the disintegration of the LibDems. Once they were a party I would certainly have voted for if the only alternatives had been the Tories or Blairite Labour, but then (like many others) I did not realise until after the last election just how far to the right they had moved under the leadership of crypto-Tory Clegg and his Orange Book cronies. What will become of them now, I neither know nor care. Perhaps they will manage to reform under new leadership and become something more like the old Liberal party, or else they may just fade away into irrelevance. Possibly the most appropriate outcome would be for the remnants of the LibDems to merge with the Tories.

I think few people will now consider Miliband to have been a good leader for the Labour party. Perhaps he got a raw deal, being attacked by the right-wing press and having to cope with Blairite members of his own party. I think that he might have made a half-decent Prime Minister, given the chance, except that,  when it counted most, he was too weak. When Cameron attacked Labour’s right to enter any kind of alliance with the SNP, he capitulated. If he had fought back against Cameron (and doubtless certain elements within his own party, such as Jim Murphy), and defended both Labour’s right to choose its own allies and the SNP’s right to be part of such an alliance, he might have been more convincing as a potential Prime Minister. The suggestion that, in a hung Parliament, Miliband might have chosen to let Cameron stay on as Prime Minister rather than accept support from the SNP must have cost Labour votes in Scotland. Even in England it may have signalled to some voters on the left that it was not worth voting for Labour.

Now Labour has to find a new leader. My suspicion is that whoever is chosen will argue that Labour lost because they were perceived by voters in England as being too left wing, and Labour will take another lurch to the right. From a Scottish and SNP point of view, the Labour party is very nearly as right wing as the Tories, but some people in England still appear to think that Labour are dangerous, left-wing radicals. However, being very similar to the Tories is probably not going to be a winning strategy for the next election either. If people think that Tory policies are good, then are they not more likely to vote for the real Tories rather than a Labour imitation?

One can argue that Labour lost the election because they were weak in opposition. They never really challenged the arguments used by the Tories to justify their policies. For example, they accepted the idea that it is essential to reduce the deficit by drastic austerity, and merely quibbled about the rate at which it should be done. There is a strong argument that drastic cuts in public spending damage the economy, and have slowed economic recovery while causing a great deal of hardship. Yet Ed Balls said there was nothing in the most recent budget which he would have changed. (For a good discussion of this by someone who clearly knows more about economics than I do, see and other articles on the same site.)

A strong opposition party would have been prepared to put forward its own distinctive policies, and would have strived to persuade the electorate that its policies were better than those of the government. Labour consistently failed to do this over the last five years, and through that failure they have done a grave disservice to the English electorate by denying them any distinctive and credible alternative to the current neo-liberal consensus. I doubt whether they will perform their duty as the official opposition any better between now and the next election. On the contrary, I expect they will decide that Miliband’s tentative efforts to move slightly towards the left were in the wrong direction, rather than too little and too late.

For the SNP, a hung parliament in which they supported and tried to influence (perhaps with limited success) a Labour minority government could have provided them with some oppportunities but also many dilemmas; the relationship between the SNP and Labour would have been a difficult one, with many possible pitfalls. However, not supporting a Labour government, if one had been possible, would not have been a viable policy. A Tory majority provides a more straightforward situation; unless Cameron offers significantly greater powers for the Scottish Parliament than the surviving Smith Commission proposals, there will be little or nothing in the Tory agenda that the SNP can agree with, and a great deal which it will oppose as strongly as possible. It will be important for the SNP’s contingent at Westminster to be conscientious in voting against Tory measures whenever it is appropriate, even when there is no hope of actually winning the vote. The SNP are now the third largest party at Westminster, and will have the right to regularly ask questions at Prime Minister’s Questions; they must try to exploit this as effectively as possible.

What all this means for Scottish independence is hard to predict, although my guess is that it makes independence within the next few years somewhat more likely than it would have been with a Labour government. So much depends on how Cameron behaves towards Scotland and the SNP. Will he be more conciliatory, or will he continue to talk of the SNP as though they do not deserve to participate in the governance of the Union? Will he deliver more than the Smith Commission proposals, or less? How far will he go with ‘English Votes for English Laws’? Will he be willing to examine the options for genuine constitutional reform, such as a federal system for the UK?

The other big question for the whole of the UK is whether there will be a referendum on EU membership, with the possibility that Scotland might vote to stay in the EU while the rest of the UK votes to leave. Could we even see Scotland becoming independent following an agreement between Westminster and Brussels that Scotland should be treated as the sole continuator state for the purpose of EU membership? (Will those wanting a UK exit be accused of wanting to ‘destroy’ and ‘break up’ the EU by removing 12.7% of its population?)

Now the countdown starts to the Scottish election next year. It should be an interesting year for Scottish politics.