Should the UK constitution be reformed, rejected or reinvigorated? Jack Newman reports on a new framework and launch event on reviewing the constitution.
A major review of the UK Constitution launched in early February 2022. This partnership between the Bennett Institute and the Institute for Government (IfG) is a timely response to a period of upheaval in the UK’s constitutional settlement. It was marked by the publication of a review framework and a launch event with leading voices on the constitution.
Emerging from both the publication and the event were questions about where power lies within the UK’s constitutional order.
Three dimensions of power
In our Framework for Reviewing the UK Constitution, we identify three fundamental lines of power within the constitution, each of which is increasingly the source of tension and disagreement.
Firstly, there is a gathering debate about the nature of the power relationships between the core institutions of government. There are concerns that the traditional sovereignty of parliament and the rulings of the courts are in growing tension with an increasingly assertive executive branch.
Secondly, the constitutional character of the relationships between the devolved governments and the central state is increasingly open to question. There are growing questions about the idea of independence in Scotland and Wales, and, in Northern Ireland, about unification with the Republic of Ireland. And there are also increasingly pressing questions about where England fits into the devolved Union.
Thirdly, there are rising challenges to the relationships between citizens and the state. Referendums, citizens assemblies, petitions, and different voting systems have been designed as tools to bridge a growing gap, and there are rising concerns at elite level about political disengagement and a lack of constitutional literacy in the wider population.
Tensions in the constitution
At our launch event – The UK constitution: reform, reject or reinvigorate? – chaired by Professor Michael Kenny from the Bennett Institute, we sought the expertise of four leading practitioners on these and related constitutional issues. Within their wide-ranging contributions, each highlighted some fundamental points of tension and disagreement about the workings of the constitution.
Dr Halima Begum, Chief Executive of the Runnymede Trust, focused on who holds power, especially considering minority groups; Baroness Smith of Basildon, Shadow Leader of the House of Lords, emphasised the importance of how power is held to account; the Rt Hon Robert Buckland, QC and former Lord Chancellor and Secretary of State for Justice, considered how power is balanced in the UK constitution; and Ciaran Martin, Professor of Practice in the Management of Public Organisations at Blavatnik School of Government, asked where power is exercised in the UK’s territorial settlement. When these different perspectives came together, the discussion revolved around three particularly important points of debate.
Holding power to account
Firstly, there were questions about the balance of power and the accountability of government. Halima Begum asked how we protect the public space of civil society, and especially the rights of minorities, arguing that the public currently feel unrepresented and unable to hold decision-makers to account. Angela Smith thought that the government must be a willing partner in being held to account, but in recent years the government has often responded too defensively to challenges from the legislature. She explained that when there is a large majority, the government closely controls the House of Commons and can undermine its scrutiny role, whereas the House of Lords, with its time and expertise, has a vital role in holding the government to account.
Robert Buckland agreed that the government should not force legislation through without scrutiny, but highlighted that these attempts are usually corrected by other parts of the system, as with the recent response of the Lords to the government’s attempt to push through the Police, Crime, Sentencing and Courts Bill. This led him to conclude that power tends to balance out in the UK constitution, despite everything, and that we should avoid thinking that: “government are the bad guys, the judiciary the good guys, and the legislature the heroes”, each part having its role and its flaws.
A fair process?
A second issue was whether a majoritarian system can provide the basis for a fair and legitimate legislative process. Buckland argued that it is important not to confuse process with outcomes, because while people clearly want a fair and open legislative process, they can acknowledge this even where they don’t agree on the content of the policy. He pointed out that the government was elected with a mandate to deliver its manifesto, and it has the authority to vote this through the Commons. However, Begum argued that we need to think about minimum protections for human rights that cannot be overridden by majority governments. She raised concerns that there are bills currently going through parliament that erode the rights of minorities, notably the Borders and Nationality Bill.
Martin made a different comment about majoritarian rule, namely that a government majority can be established entirely on the basis of English support. This problem is exacerbated by the increasing Englishness of the UK government, with Martin noting the steady disappearance of senior Scottish politicians and civil servants from the political centre. He noted the consequence that people in the devolved nations are less likely to accept the fairness and legitimacy of the political process, raising questions about the constitutional assumption that sovereignty ultimately resides at Westminster.
Is there a case for reform?
A final theme from the discussion was around the justification and need for reform. Smith asked for careful thinking about Lords reform, arguing that there is scope to reform its size, appointments, and procedure, but that electing or moving the Lords will problematise its relationship with the Commons. Constitutional reform, she suggested, should be considered in terms of function, and the functioning of the Lords and Commons arises from the relationship between them. Buckland thought that many parts of the constitution work well, and that the tools needed to fix constitutional issues already exist. He gave the example of the Commons Select Committees, which could take on a greater role to strengthen pre- and post-legislative scrutiny. Martin agreed that jumping to radical solutions should be avoided, but he highlighted the unavoidable question around the future of the Union, and the government’s failure to act consensually or consistently in its approach.
Devolution has been a highly emotional and important process in the devolved nations, with each engaging in an ongoing national constitutional debate, and yet in England it has remained a technocratic and relatively specialist issue. Begum was the strongest advocate for reform, challenging us to ask “what is the best form, shape, and structure of the constitution that allows the voice and space of civil society, and in particular minority rights, to be upheld”.
These emerging points of debate indicate that constitutional questions are the source of disagreement in part because of the clash different understandings of where power lies in the current system and how well its core institutional features are working. While some see a rough balance of powers still operating, and therefore limited justification for reform, others see significant and troubling imbalances that need to be addressed.
These issues will be explored in greater depth, and potential solutions proposed, in the course of the review that IfG and the Bennett Institute are developing.