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Britain\'s Constitutional Future

A Note by the Director (Ditchley 12/2005)
 
28-30 October 2005
This conference on Britain’s future constitutional arrangements was more ambitious even than the Ditchley norm, in taking on an issue with such broad ranging-implications, touching on some acute political sensitivities.  We had to take into account what our Chairman called a tsunami of recent constitutional reform proposals, most of which had not had time to bed down.  Our distinguished and experienced participants were, by a large majority, naturally enough, from the United Kingdom.  But we had interesting minority perspectives from the USA, Canada and Ireland, which reminded us that British problems were not necessarily unique;  and we also had some informed comment on the European context.  This mix led to a remarkably open-minded debate, from which everyone seemed to gain a fresh sense of perspective and out of which came glimpses of consensus or compromise in those areas which allowed it.
This Note cannot in any sense be a comprehensive record of the discussion, which ranged across a vast territory and reflected a number of subjective concerns, both party political and devolutionary.  But it will attempt to bring out the principal points of importance for those who may be looking, either as policy-makers or observers, at the next stages of constitutional reform.
In the early stages of the conference we were treated to a clear view of the pragmatic tendencies in the British constitutional tradition, which favoured maintenance and gradual adaptation rather than crises and great leaps forward.  The degree of movement in recent years suggested that a rather more uneven process might now be under way, but participants largely agreed that it did not amount to an emergency.  The pace of reform had to hit the mean between going so fast that support was lost and going so slow that frustrations became explosive.  The most important criterion was to meet the requirements of the British population as a whole for a well-run democracy, for tolerance and freedom and for the rule of law.  The perceived legitimacy of the country’s constitutional arrangements was a constant theme. 
The conference had a good go at assessing where devolution within the UK had reached and what the next steps might be.  Since it was now politically irreversible, it had to be made to work.  The majority thought that Scotland’s devolution settlement was largely stable and had established broad legitimacy, to the point where moves for an independent Scotland were less likely now than at the start of the process.  The score-card in Wales was less satisfactory.  Wales’s devolution settlement could only be made sustainable if the legislature and executive were separated and if primary legislative powers were devolved to the Assembly and further built up over time.  As for England, we kept on coming back to the observation that English regional devolution had so far failed, with the possible exception of the elected London Mayor.  Arrangements for the English Regions had lacked legitimacy so far, falling foul of fragmented and opaque accountability structures.  This seemed to underline the lesson, not least on the funding arrangements for devolved structures, that devolution could not be stable or fair unless underpinned by clear, formal principles.  Northern Ireland, it should be noted, was deliberately excluded from our debate as an issue of such a unique character that it needed separate treatment.  The fact that the four constituent parts of the UK were evolving with differing patterns of devolution, a striking feature for our non-British participants, was not considered a serious deficiency.  Devolution had to adapt to local characteristics rather than conform to a principled design. 
Participants enjoyed getting into the “West Lothian Question”.  The fact that Scottish MPs could vote on English questions, and not the converse, was an unresolved and possibly unresolvable problem.  The conference was divided as to whether this should be left untreated, with occasional pragmatic adjustments when they became possible, or whether it should be addressed more fundamentally in case a real crisis blew up.  It was pointed out that sooner or later a government was bound to come along with a majority in the United Kingdom but not in England.  To allow this to become a serious crisis was unwise.  This fed the predilection of some to take the option of proportional representation more seriously (see below).
The European context was not considered all that crucial for the pace or nature of devolution.  Participants observed that there were tensions between a single UK position in Europe and the concerns of devolved entities.  But Whitehall, and particularly the Foreign and Commonwealth Office, had managed these tensions reasonably well so far.  Some felt that Scotland and Wales needed a clearer voice in Europe, especially since their Assemblies had to implement European directives on an increasingly frequent basis.  But at the present juncture the effect of the European Union on, for instance, financing issues was not considered so significant that structures needed to be altered. 
A point worth noting from the devolution debate was that the division of responsibilities for policy, as between the centre and the regions, was regarded as not yet clear or strong enough.  Since the transparency and effectiveness of government arrangements fed into legitimacy, this might affect people’s respect for or involvement with the political arena.  Legitimacy did not stem only from the electoral process, but also from a sense of a coherent vision of modern democracy.  People needed to know who was accountable and who held the purse strings.  A perception of coherence was related to the functionality of governing institutions and to the effective delivery of policies.  Participants thought that more careful monitoring of mechanisms and their effectiveness might be worth pursuing in this regard.
In the discussion of constitutional reform, many believed that the establishment of the Supreme Court would not significantly alter the nature of the relationship between the three branches of the constitution.  Others felt that it would accelerate the process of constitutional change and strengthen the position of the judiciary vis á vis the other branches.  It was also more likely to raise the profile of senior judges than the current system in the House of Lords.  As for the Judicial Appointments Commission, it was agreed that it would help to improve the diversity of the judiciary, so long as appointments were made solely on merit.  Views differed as to whether the Lord Chancellor should be involved at all in the JAC, or whether he should have more influence than currently planned.  Likewise, some felt that the Lord Chancellor should play no role in the Judicial Complaints Office.  There was concern that this innovation would open up further opportunities for the media to use complaints statistics to put populist pressure on the judiciary.  Overall, however, participants considered that the transfer of functions from the Lord Chancellor to the Lord Chief Justice would help clarify their respective roles and would introduce the requirement for managerial qualities in the Lord Chief Justice which would change the nature of his leadership.  While the inevitable tensions between politicians and judges would not be eliminated by the new reform proposals, some people felt - with an element of dissent - that it was manageable if both sides thought in terms of partnership rather than competition and if the judiciary in particular demonstrated restraint by avoiding commenting on government policy through their judgments.  The fact that judges and civil servants were evolving a good professional relationship through the new reforms was encouraging. 
We discussed the degree of public trust in the three branches of the constitution.  There was consensus that the judiciary had the highest levels of trust at present, but that trust could be fragile if the relationship between politicians and judges broke down or if judges were asked to perform politically controversial tasks, such as heading commissions of enquiry on political issues.  The conference underlined how important it was that communication between the judiciary and the public should be maintained and improved in the years ahead.
The conference examined the impact of the European Convention on Human Rights through the Human Rights Act.  The HRA had already had an important effect not only in the courts, but also on public administration and on detailed scrutiny of legislation.  It was pointed out, however, that the vast majority of cases coming before the courts were not affected by the HRA;  and that the HRA, for the most part, merely codified aspects of British Common Law that had been present in our system for a long time.  More problematic was that events such as the 7 July explosions had made it more difficult for the HRA to bed down;  and that it might increase the chances of conflict between politicians and the judiciary.  But it was noted with some relief that the HRA had not proved a charter for mischief makers and had so far not produced the flood of cases that was once feared.
Finally we looked at parliament and the citizen, focussing on the roles and performance of the two Houses of Parliament and on communication with the public.  Views were spread across a wide spectrum.  Most participants felt that reform of the House of Lords should continue, but there was no great pressure for 100% election of members of the second chamber.  The paradox was noted that the public seemed to have a higher respect for the unelected chamber than for the elected one.  It was also felt beneficial to maintain the opportunity for senior and experienced professional figures to sit in an upper house.  Most people seemed comfortable with a mix of elected and unelected peers.
As for reform of the House of Commons, the discussion was more diverse because no new proposals had been formally made.  Several participants felt that change was necessary, contrasting the need for more democracy in the House of Commons with less in the House of Lords.  Part of the discussion centred on electoral reform, with those in favour of proportional representation maintaining that the existing system was alienating citizens through the inefficacy and unfairness of the distribution of votes.  The trend was noted of the UK moving away from a clear two party structure as the years went by towards a multi-party system, which would be more likely to create legitimacy crises for a government elected by a first-past-the-post system.  Others argued strongly for the existing system because of its ability to connect parliamentarians geographically with their electorates and because of the greater likelihood of its producing governments clearly in control.  The second group took a longer-term perspective on the threat of instability arising from a minority rule government, which the British electorate seemed to have coped with reasonably well in the past.  It was noted that opinions were largely shaped in these areas by political or party considerations.  It might take some time before reform in these areas interconnected with other aspects of major constitutional reform. 
There was much greater consensus about the need for sensible reform of parliamentary procedures, especially in the area of parliamentary scrutiny.  It was noted that Members of Parliament were no longer taking their role as Parliamentarians as seriously as in the past.  There was a good deal of support for the reinvigoration of Select Committees by giving them the capacity to initiate certain types of legislation, the resources to engage outside expertise and advice and the status to attract politicians of weight.  Chairs of Select Committees might be offered a parliamentary career that equated with ministerial responsibilities and influence.  There were also proposals for increasing the accountability of the executive;  for instance, by having ministers and their shadow opposites reporting directly to both Houses, not through junior Ministers or specially appointed spokespersons;  by giving parliament a formative role in international treaty-making and the preparation of multilateral, not least European, agreements and conventions;  and by requiring the Prime Minister to appear in front of specialist Select Committees to answer questions in greater depth on a single subject.  Perhaps the representative role of individual Members of Parliament could also be enhanced by allowing more free votes, more room for private bills and more resources for parliamentary as opposed to constituency activity. 
Throughout the discussion on these areas there were frequent references to the need to reconnect the public with government and parliamentary activity, perhaps through the rebalancing of the emphasis on professional parliamentary communication as opposed to party activity, through an increase in the funding for BBC Parliament and through the encouragement of greater electronic coverage.  Many participants saw scope for the introduction of issues-based discussion and communication that reached through to the citizen, competing with the media’s tendency to focus on political personalities and intra-party and inter-party disputes.  The suggestion was made that referendums could provide a vehicle to re-engage the citizen and further legitimise democratic decision-making, though doubts were expressed that this would have the desired effect.  Caution about unintended consequences was expressed at various stages during the debate.
Summing up a discussion of this nature proved a challenge in our final sessions.  But certain broad lines were defined.  The first was that the scale of current reforms was massive and could not be ignored.  The present state of affairs did not amount to a crisis, but there were important changes to be made.  The current process was demonstrating that the UK’s constitutional arrangements could encompass adaptation in order to make things work better for the practitioners and for the citizen.  There was nevertheless a clear division between those who saw reform as constitutional evolution, salutary and necessary on its own merits, but gradual; and those who were more alarmed at the draining of legitimacy from the process, which appeared to call for more radical proposals addressing the inherent instability of a two party system and involving the voter in the real issues.  The same divergence applied to the discussion of devolution, with greater or lesser worry about the unsustainability of the present trend. 
It has to be reported, nevertheless, that the alarmists did not appear to be winning the contest.  Our excellent working groups teased out more items of consensus than the pessimists were expecting at the beginning of the conference.  In particular, the considerable strength and seniority of judicial opinion in our midst gave weight to the belief that the relationship between politicians and judges would be more clear-cut in future and that the public would benefit from the political awareness and efficiency of the courts.  Nevertheless uncertainties abounded in every quarter and the changes were unlikely to develop their full potential unless people changed the way they thought.  Whether or not the British constitution became entrenched or written was less significant than whether the changes being implemented regathered the people’s respect for executive, legislature and judiciary alike.  Seen in those terms, the conference left participants with much food for further thought, with participants impressed by the range of perspectives they had heard and by the diversity of the requirements which needed to be met in the various quarters of the kingdom.
At the end, our Chairman pointed out that we had been looking at constitutional problems from a noticeably domestic viewpoint.  There were many other countries where parliaments and judiciaries were facing exactly the same sort of problems.  The concept of the rule of law was now being pursued internationally to an unprecedented degree, in places like China, Russia and South America as well as in the West.  The fact that the rule of law had not been satisfactorily defined seemed to give advantage to the flexible approach.  But the importance of an independent judiciary and an independent parliament, when power was tending to accrue to the executive, was clear in a number of different systems.  If other countries were looking to the United Kingdom for some guidance in the business of carrying forward a programme of reform, it was a huge responsibility to get our own process right.
Thus ended an absorbing weekend, which had drawn on a remarkable spread of wisdom and experience.  Our chairman was deservedly congratulated for steering the conference with great skill through choppy waters;  and the blustery weather of a classic Ditchley autumn weekend added poignancy to the setting.  We agreed that there was a huge amount to come back to at another time.
This Note reflects the Director’s personal impressions of the conference.  No participant is in any way committed to its content or expression.
PARTICIPANTS
Chairman   :   The Rt Hon Lord Woolf
Lord Chief Justice of England and Wales (2000‑05);  Master of the Rolls, Royal Courts of Justice (1996-2000);  Law Lord.

CANADA
Mr Rudyard Griffiths
Founder and Executive Director, The Dominion Institute;  Advisor, Woodrow Wilson Centre, Washington DC.
Professor Richard Johnston
Professor and Head of Political Science and Distinguished University Scholar, University of British Columbia.
Mr Patrick Monahan
Dean, Osgood Hall Law School, York University (2003-).

IRELAND
Dr Garret FitzGerald TD
Member of Council of State;  President, Institute of European Affairs.  Formerly:  Prime Minister of Ireland (1981-2, 1982-7);  Member of Dail Eireann (1969-92).

UNITED KINGDOM
Mr Alex Allan
Permanent Secretary, Department for Constitutional Affairs.
 
Mr Robin Allen QC
QC (1995-);  Head, Cloisters Chambers (2002-);  Trustee, London Bombings Relief Charitable Fund
(2005-);  Consultant on Equality Law to Age Concern and Age Europe (2004-);  Bencher of Middle Temple (2005-);  Special Legal Adviser to the Disability Rights Commission (2002‑).
The Rt Hon Lady Justice Arden DBE
Lady Justice of Appeal, Royal Courts of Justice (2000-);  Chairman of the Judges’ Council Working Party on the Constitutional Reform Bill 2004.
Professor Patrick Barwise
Professor of Management and Marketing, London Business School (1976-).  Adviser, Ofcom.  Author.
Mr Philip Bassett
Special Adviser, Department for Constitutional Affairs.
The Hon Mr Justice Beatson FBA
Judge of the High Court of Justice, Queen’s Bench Division (2003-).
The Rt Hon Alan Beith MP
Member of Parliament, Liberal 1973-88, Liberal Democrat 1988- for Berwick-upon-Tweed (1973-);  Deputy Leader Liberal Democrats (1992-);  Liberal Democrat spokesman on Home Affairs (1994-).
His Hon Judge William Birtles
Circuit Judge (2002-).  Formerly:  Barrister, Old Square Chambers (1985-2002).
Professor Vernon Bogdanor CBE FBA
Professor of Government, Oxford University;  Fellow, Brasenose College;  Professor of Law, Gresham College.
Professor Nick Bourne
Leader of the Conservative Party in the National Assembly for Wales.
Mr Rod Clark
Director General of Strategy, Department for Constitutional Affairs (2005-).  Formerly:  Director of Strategy, Planning and Performance, Department for Constitutional Affairs (2003‑05).
Mr James Connal
Special Adviser to The Rt Hon Geoff Hoon MP, Leader of the House of Commons.
Mr Lawrence Conway
Head of Cabinet Secretariat and Principal Private Secretary to the First Minister, National Assembly for Wales.
Mr Brendan Donnelly
Director, The Federal Trust for Education and Research.
Ms Clare Ettinghausen
Chief Executive, The Hansard Society.
Lord Falconer of Thoroton
Secretary of State for Constitutional Affairs and Lord Chancellor (2003-).
Ms Oonagh Gay
Head, Parliament and Constitution Centre, House of Commons Library.
Lord Goodhart QC
Liberal Democrat Shadow Lord Chancellor;  Spokesman on legal and constitutional affairs;  Vice President, International Commission of Jurists.
Mr Christopher Grayling MP
Member of Parliament, Conservative, for Epsom and Ewell (2001-);  Shadow Leader of the House (2005-).
Professor Robert Hazell
Director, The Constitution Unit, School of Public Policy, University College London.
Mr Oliver Heald MP
Member of Parliament, Conservative, for North East Hertfordshire (1997-), North Hertfordshire (1992-97);  Shadow Secretary of State for Constitutional Affairs (2005-).
Lord Henley
Member, House of Lords (1999-);  Opposition Chief Whip, House of Lords (1998-2001).
Dame Patricia Hodgson CBE
Principal-elect, Newnham College, Cambridge;  Chairman, Higher Education Regulation Review Group;  Member, Board of Higher Education Funding Council for England.
The Rt Hon Lord Holme of Cheltenham CBE
Chairman, House of Lords Select Committee on the Constitution,  Chairman, Hansard Society for Parliamentary Government (2001-).
Professor Jeffrey Jowell QC
Professor of Public Law, University College London;  UK’s Member and a Vice President, Council of Europe’s Commission for Democracy Through Law (“The Venice Commisson”).
The Rt Hon Lord Kingsland QC TD DL
Shadow Lord Chancellor.
Mr Magnus Linklater
Former Editor, The Scotsman.  Journalist and Author.
The Rt Hon Lord Lloyd of Berwick DL
Lord of Appeal in Ordinary (1993-);  Chairman, Security Commission (1992-) (Vice-Chairman, 1985-92);  Chairman, Inquiry into Legislation against Terrorism (1996-).
Mr Guy Lodge
Democracy Team, Institute for Public Policy Research.
The Rt Hon Sir John Major KG CH
Chairman, Council of Management, The Ditchley Foundation.  Formerly:  Member of Parliament, Conservative, Huntingdonshire (1979-2001);  Prime Minister and First Lord of the Treasury (1990-97);  Chancellor of the Exchequer (1989-90);  Secretary of State for Foreign and Commonwealth Affairs (1989);  Chief Secretary to HM Treasury (1987-89).
Professor James Mitchell
Professor in Government, University of Strathclyde.
Professor Dawn Oliver
Professor of Constitutional Law, University College London (1993-).  Formerly:  Dean, Faculty of Laws, University College London (1993-98).
Mr John Osmond
Director, Institute of Welsh Affairs;  Fellow, University of Wales Institute, Cardiff.
Baroness Rawlings
Life Peer (Conservative) (1994);  Shadow Minister for International Development and Foreign Affairs;  Chairman of Council, King’s College, London.
The Rt Hon Lord Richard QC
Chairman, Welsh Independent Commission (2002-).  Formerly:  Lord Privy Seal and Leader of the House of Lords (1997-98);  Leader of the Opposition, House of Lords (1992-97).
Mr Ken Ritchie  
Chief Executive, Electoral Reform Society (1997-);  Member, Makes Votes Count coalition;  Member, Fairvote, USA.
Mr Dan Rosenfield
Policy Team Leader, HM Treasury, responsible for English regional policy, London governance and the Olympics;  Team Leader, Funding relationship with Scotland, Wales and Northern Ireland (2005-)
Sir Muir Russell KCB FRSE
Principal, University of Glasgow (2003-).  Formerly:  Permanent Secretary, Scottish Executive (1999-2003);  Permanent Under-Secretary of State, Scottish Office (1998-99).
Mr David Seymour
Legal Adviser, Home Office and Northern Ireland Office (2000-).  Formerly:  Legal Secretary, Attorney General (1997-2000).
Mr Brian Taylor
Political Editor, BBC Scotland.  Formerly:  Political Correspondent, BBC Scotland.
Lord Tyler CBE
Life Peer (2005).  Formerly:  Member of Parliament, Liberal Democrat, North Cornwall (1992‑2005);  Member, Puttnam Commission on Communicating Parliamentary Democracy (2004‑05);  Shadow Leader of the House (2001-05).
The Rt Hon Lord Windlesham CVO PC
President, Victim Support;  Chair-Elect of the Butler Trust.  Formerly:  Visiting Professor of Public and International Affairs, Princeton University (2002-03);  Principal of Brasenose College, Oxford (1989-2002);  Lord Privy Seal and Leader of the House of Lords (1973-74).  A Governor and Deputy Chairman, Council Management, The Ditchley Foundation;  Board Member, the American Ditchley Foundation.
UNITED KINGDOM/UNITED STATES OF AMERICA
The Hon Barbara Thomas
Chairman, United Kingdom Atomic Energy Authority;  Deputy Chairman, Friend's Provident Plc;  Deputy Chairman, Financial Reporting Council;  Non-Executive Director, Department for Constitutional affairs.  A Governor and Member of the Council of Management, The Ditchley Foundation.
UNITED STATES OF AMERICA
Dr Kermit Hall
President, The University at Albany, State University of New York;  Scholar of American constitutional, legal and judicial history.
The Hon Justice Frank Sullivan Jr
Justice, Supreme Court of Indiana (1993-);  Indiana State Budget Director (1989-92).  Member, Board of Directors, The American Ditchley Foundation.