Mike Gordon: Constitutional Reform under the Coalition Government

mike-gordon-pictureThe Government’s response to the House of Commons Political and Constitutional Reform Committee’s (PCRC) report Do we need a constitutional convention for the UK? is in many ways a rather unremarkable document (Cm 8749, November 2013).  The PCRC’s report (Fourth Report of Session 2012-13, HC 371) was published on 28th March 2013, and concluded that there was ‘a need to consider both how the increasingly devolved parts of the Union interact with each other, and what we, as residents of the UK, want the Union to look like going forward’.  As a result the PCRC suggested that the Government ‘consider, among other options, preparations for a UK-wide constitutional convention, including decisions about its form and organisation, and the process of calling for evidence’, which would be held in the aftermath, and regardless of the result, of the Scottish independence referendum in September 2014.

The qualified nature of this suggestion stemmed from the fact that there were ‘a range of very different opinions’ as to the necessity and/or desirability of holding a constitutional convention for the UK among the witnesses who provided evidence to the PCRC’s inquiry, and the absence of unanimity among Committee members about the recommendations which ought to be made to the Government.  Yet it is most unlikely that even had the PCRC offered a resounding and unreserved endorsement of a need for a constitutional convention urgently to be convened that an alternative response from the Government would have been prompted from that which was actually received.  For the Government concluded that there was not a strong case to hold a constitutional convention at this time (para 4.3) as there was a lack of public demand (para 2.2), and it had alternative pressing priorities; in particular, the need to focus on ensuring the recovery of the UK economy (para 1.3).

So far, so unsurprising – lack of public interest and scarcity of resources being used to justify (politely) a government declining to engage in a potentially elaborate exercise in constitutional reform.

What is of interest, then, in the Government’s response?  Two things might be considered worthy of note.  First, the Government does not reject the argument that a constitutional convention should be held in principle. It does not, in other words, argue that a constitutional convention is not a potentially useful mechanism through which constitutional reform could be pursued in (or to) the UK.  The Government accepts that ‘there may be situations in which a constitutional convention is needed’ (para 4.1), and while declining to comment specifically on the possible composition of such a convention, the important principle that the public should be the ‘driving force’ in such an undertaking is accepted (para 2.1).

Of course, future governments will not necessarily be bound by the position taken by the Coalition.  But the response of the Government, taken together with the assessment of the matter carried out by the PCRC, does seem to recognise that future significant constitutional reform to or within the UK may need to be the result of a process that is more inclusive and reflective than might have been experienced previously.  This is not to say that some (perhaps much?) constitutional reform cannot still be government-led – as the Government’s response indicates, ‘context is crucial’ (para 1.4).  Instead, it is to acknowledge the availability of the constitutional convention as a tool of constitutional reform in the UK, and thus the possibility of broader engagement with the future shape and substance of the constitution than a model in which it is (broadly, albeit with input from other actors and groups) for the UK Government to determine, and the UK Parliament to implement, the quantity and quality of modifications to the existing settlement.

The second matter of interest in the Government’s response to the PCRC report is not about the process of constitutional reform, but the attitude to reform which is evident in the document.  Constitutional reform is explicitly said to be ‘important’ (para 4.1), and much more time is spent in the response detailing the programme of constitutional reform that the Coalition Government has engaged in during its time in office than actually addressing the need (or lack thereof) for a constitutional convention.

The central motif for this programme of reform is presented as ‘decentralisation’, something understood to accommodate both further devolution of power to Northern Ireland (the transfer of policing and justice functions in 2010, with the prospect of additional fiscal powers being devolved currently under consideration), Wales (the 2011 referendum leading to the devolution of ‘full law-making powers’ in the subject areas originally covered by the Welsh settlement, with the commitment to accept many of the Silk Commission’s recommendations on future financial powers for Wales) and Scotland (the extensive devolution of fiscal power under the Scotland Act 2012, and the prospect of further devolution if Scotland remains a part of the UK after 2014), in addition to shifting power away from Westminster to local government in England.

Whether it is right to describe this redistribution of power to local government as a ‘historic shift’ (para 3.24), or whether all the examples cited can really be understood to form part of a programme of constitutional reform (for example, ‘creation of enterprise zones in 24 cities and wider Local Enterprise Partnership areas that provide significant tax breaks’?) can be debated elsewhere.  What is clear is that the Government wants to present itself as having a pursued an extensive, but also coherent, reform agenda.  Examples of constitutional change which do not fit into the overarching decentralisation narrative are either sidelined (the Parliamentary Voting System and Constituencies Act 2011 and Fixed-term Parliaments Act 2011 are mentioned in passing in para 3.11, despite the significance of the latter, and the intentions – if not the results – of the former) or left out (European Union Act 2011Succession to the Crown Act 2013Crime and Courts Act 2013?).  Perhaps it would be too much to expect the failed attempts to reform the House of Lords to be acknowledged, but the result is that a full impression of the (significant) reforming aspirations of the Coalition is not achieved by attempting to organise its programme around the notion of decentralisation.

Is this of great importance?  Is it not the prerogative of each government to try to make what it has achieved as consistent and rational as possible?  And the notion of decentralisation has not been freshly invoked for the purposes of this response – indeed, the Coalition agreement Our Programme for Government of May 2010 spoke of ‘a determination to oversee a radical redistribution of power away from Westminster and Whitehall to councils, communities and homes across the nation’ in the foreword, in addition to highlighting the importance of decentralisation itself in section 4 on Communities and Local Government (although interestingly the principle is not mentioned in section 24 on Political Reform).

Yet it can be seen to tell us something important about the attitude of the Government to reform.  That governments have been interested in pro-actively engaging in constitutional reform has been clear since the New Labour Government which first took office in 1997.  As Rodney Brazier has demonstrated, prior to this attempts at constitutional reform were generally ad-hoc and reactive (see Constitutional Reform, 2008, 3rd ed. OUP).  However, successive New Labour administrations engaged in reform not because it was required by extenuating circumstances, but because it was seen to be desirable in its own right.  The Coalition Government has continued to seek pro-actively to reform the constitution in a range of areas, but the attempts made to explain and justify what has been done in the response to the PCRC also seem to go further.  They appear to be presenting a range of reforms as part of a systematic plan, with decentralisation of power the overriding objective.   Constitutional reform is here presented as being pro-active and systematic, taking us further than ever before from the pre-New Labour paradigm.  Whether this programme of reform is systematic, or is simply being represented as such with a particular purpose in mind, is not something that needs to be conclusively determined here.  What matters is that the Government is seeking to portray it as such.

It would be to read too much into a relatively straightforward response to a Select Committee inquiry to view this as some kind of dramatic step forward.  But the attitude to constitutional reform which underpins this response is, in my view, important.  It shows that the shift in approach to constitutional change initiated by New Labour has not only continued under the Coalition, but arguably developed further.  Reform should not just be pro-active, but will also ideally be coherent, and justified by reference to common underlying principles.  Gordon Brown’s The Governance of Britain (Cm 7170, July 2007) may have been a more dramatic statement of such intent, but ultimately disappointed.  The present Government’s representation of its efforts to reform the UK constitution in response to the PCRC seems to confirm that this attitude has taken root (although disappointments still remain).  Ultimately, we may then hope that trying to talk about constitutional reform in a more coherent and systematic way will eventually lead us to practice constitutional reform in a more coherent and systematic way too.

The Government’s response to the PCRC may therefore be unremarkable on the face of it.  Yet those who are interested in changing methods and attitudes to reform of the UK constitution may find that, beneath the surface, there is some evidence of progress.

Dr Mike Gordon is Lecturer in Public Law at Liverpool Law School, University of Liverpool.

Suggested citation: M. Gordon, ‘Constitutional Reform under the Coalition Government’    UK Const. L. Blog (18th December 2013) (available at http://ukconstitutionallaw.org)