Introduction

No other Government this century has embarked upon so significant or wide-ranging a programme of constitutional reform as the New Labour Government. It is therefore my particular pleasure, as the member of the Cabinet entrusted with driving forward development of policy, to have been invited here to give the Annual Constitution Unit Lecture.

During the constitutional wilderness years before we took office, we had the time to prepare the ground thoroughly. During that time too, the Constitution Unit broke new ground. Let me pay tribute to the Unit for its diverse and illuminating work.

I want to speak today about the approach we have taken to implementing our programme of reforms, about its purpose and its coherence, and about what we firmly believe will be its profound and beneficial effects.

Let me start with the problems we faced:

We came to power with specific problems identified:

• a government that was over-centralised, inefficient and bureaucratic local government in need of reform;

• something approaching a national crisis of confidence in the political system;

• excessive secrecy that both encouraged and reflected the arrogance of power and a lack of accountability;

• a lack of clarity about individual rights, and a deficiency in ready and effective means of enforcing them;

• Parliament itself at risk of falling into disrepute, with the House of Commons in need of modernisation, and the House of Lords with an inbuilt Conservative majority from the hereditary peerage which was unsustainable at the end of the twentieth century; and

• a country that was sidelined in Europe, for lack of decisive leadership and commitment.

Our constitutional measures each have their own pedigree and some have greater public salience than others. But they all have two things in common.

First, they are the product of long-standing dissatisfaction with constitutional practice in particular areas - in some cases going back a decade or so, for example the government of London since the abolition of the GLC, but in others dating back far longer: reform of the hereditary component of the House of Lords is unfinished business from the last century.

And, second, the reforms we are introducing to tackle the problems are essentially incremental. Scottish legislative devolution is a sensible step forward after a century of administrative devolution; a Freedom of Information Act will follow on from a non-statutory Code; incorporation of the European Convention on Human Rights follows from nearly half a century of experience with the Convention.

Now there is an indictment we have to face.

We have been widely praised but also there is an indictment or separate indictments. The criticisms principally go in inconsistent directions. At one end are those who say that our reforms are too wide-ranging, too radical, verging on the revolutionary. At the other end are those who complain that they do not go far enough, that they do not represent the root and branch overhaul which is required to drag the country’s constitutional arrangements into the twenty-first century. So we have gone too far, too fast; or we should have gone faster, further, and more comprehensively. The counts could not appear in a single indictment because they conflict.

Our critics include some who, to their credit, suffered long years of frustration arguing for some of the changes that we have made. Yet now they too may have doubts: we have left things out or postponed them (for example freedom of information), or we should have gone further and not only made the rights in ECHR enforceable in domestic courts, but had a Human Rights Commission as well, or we should have gone the whole hog and allowed the judges to set aside Acts of Parliament; or we should have waited to develop a home grown Bill of Rights; or we should have done nothing at all until we had developed, perhaps through a Constitutional Convention, a fully developed, comprehensive constitutional code. Or we should have established a new Constitutional Court.

There are of course those who would rather have had no change at all. Those, like John Major for instance, who fail altogether to see the need to take any action to bring human rights home, who believe that it is enough simply to live complacently in the warm glow of the traditional concept, of freedom under the law. But the traditional freedom of the individual under an unwritten constitution, to do himself that which is not prohibited by law, gives inadequate protection from misuse of power by the State, nor any protection from acts or omissions by public bodies which harm individuals in a way that is incompatible with fundamental rights. That is why we were determined to introduce a rights based system under which peoples’ rights were asserted as positive entitlements expressed in clear and principled terms. On the other hand there are some who are converting to acceptance of our changes. I welcome, for example, that some Conservative spokesmen in Scotland are now positive about devolution. Before, devolution spelled the end of the Union. Now it has to be embraced if the Conservative Party is to arise from the ashes in Scotland.

Now I come to the Government’s approach, which I describe as pragmatism based on principle.

It is inevitable that a programme of such ambition and scope should meet with adverse criticism from contradictory stand points. But I want to set out the argument behind our approach. Our aim is to develop a maturer democracy with different centres of power, where individuals enjoy greater rights and where government is carried out closer to the people.

People’s expectations are much greater than in the Britain of our parents and grandparents. This is a more open, and thankfully less deferential, society than it was in the past. I have noticed that myself as I read our free press. It is time our institutions caught up with the changes that have taken place in the economy, in society and in the way people live their lives.

The various measures we set out in our Manifesto offer specific solutions to specific problems; and because we believe that “what matters is what works”, we are not imposing uniformity for uniformity’s sake. I shall return to that theme a little later. But what unites our reforms is that, in each case, they are sensible incremental responses, based on liberal constitutional principles, reconciling mature demands for reform with the status quo in the most appropriate way. Thus, our approach is consistent with a long tradition of constitutional reform, which gave Britain what was until recent decades widely regarded as Europe’s most progressive and stable constitutional settlement. What runs counter to the grain of our history is the notion that the constitution cannot be changed to meet changing demands. What we are about is improving our traditions whilst we transmit them.

We are steering a steady, pragmatic course. Let me assert this as strongly as I may. Pragmatism is not unprincipled.

The withholding of uniformity where uniformity would be inept is rational, not irrational. Many countries have experienced a growing desire for greater local autonomy. Sometimes this has led to civil war and anarchy, not greater democracy. We think at once, with sorrow, of the recent conflicts in Bosnia, Albania and some of the African countries. But this is not the inevitable consequence of pressure for greater local self determination. What strong established democracies such as ours must do is try to manage and respond to this pressure by modernising and reforming existing political processes. It would be extraordinary if a Union of such diverse parts as the United Kingdom could yield to a uniform pattern of powers devolved from the centre. The continued harmony of a Union of parts so diverse requires structures sensitive to place and people, not uniform structures imposed for uniformity’s sake. Intellectually satisfying neatness and tidiness is not the cement which makes new constitutional arrangements stick. What sticks are arrangements to which people can give their continuing consent because they satisfy their democratic desires for themselves.

And I am clear we set the right priorities, concentrating in the first session on devolution and human rights, while taking important preparatory steps on Freedom of Information, on Lords reform and to enable public opinion to be tested on electoral reform of the Commons.

The problems we faced needed to be tackled across a broad front: no single blueprint for change would suffice. We needed to consider:

• institutional change: to the House of Commons, to the House of Lords, and to the system of government itself, by dispersing power away from Westminster altogether;

• changes in law: for example to establish a clear framework of rights, and to ensure greater openness and transparency in the activities of government;

• adjustments to our electoral systems, to ensure that the central democratic act - voting - occurred on a basis reflecting a consensus of what is fair; and

• changes in our political and administrative culture: in particular to move from a bureaucratic, centralised and closed system to one permeated by a culture of rights, openness and accountability.

The prescription

Let me explain why I believe the main elements of our reform programme add up to a coherent and effective overall prescription for change.

First, devolution. We are bringing devolution to Scotland, Wales and, as part of the historic Belfast Agreement, to Northern Ireland. The Government of Wales Act, the Scotland Act and the Northern Ireland Act are all on the statute book. By next summer devolution will be a reality on the ground.

The devolution schemes for all three are, of course, quite different. The UK is an asymmetrical entity and the Government’s approach reflects the different histories and contemporary circumstances of England, Scotland, Wales and Northern Ireland. We are not promoting a federal style uniform devolution of powers, but differential devolution to different parts of the United Kingdom.

The new Scottish Parliament will have the power to pursue a distinctive legislative agenda for Scotland over an extensive range, including the legal system, economic development, industrial assistance, education, training, transport, the police and the penal system. There we were building on the work of the Scottish Constitutional Convention and therefore on the wishes of the people of Scotland.

In contrast to the Scottish Parliament, the National Assembly for Wales will have no power to enact primary legislation; rather, it will serve an executive function, exercising the executive powers previously exercised by the Secretary of State for Wales, so providing a more transparent and democratic framework for the government of Wales. There was no popular demand in Wales for more it has to be acknowledged.

The Northern Ireland Act system is different again. The Northern Ireland Assembly will have extensive devolved powers including social security (unlike Scotland) but excluding, pro tem, police and criminal justice (again unlike Scotland). In Northern Ireland there are special circumstances distinguishing it from Scotland and Wales: the divided community; and the special relationship with the Irish Republic. Here too the Agreement is underpinned by consent. Both governments accept there can be no change in the status of Northern Ireland without the consent of the majority of its people.

The Agreement also introduces new institutions which take account of the totality of relationships within the island of Ireland and within these islands:

• the Northern Ireland Assembly, established in shadow form in July, will enable locally elected representatives to exercise real responsibility and bring power closer to the people. There are special provisions to ensure that key decisions are taken only with cross-community support;

• the new North-South Ministerial Council will be established, which will help to deepen relationships and improve practical co-operation within the island of Ireland, delivering real benefits to all its people. There will also be a number of cross-border implementation bodies to implement policies agreed in the Council;

• the British-Irish Council, which will bring together the two Governments and the devolved institutions in Northern Ireland, Scotland and Wales, as well as the Channel Islands and the Isle of Man, to discuss and co-operate on issues of mutual interest; and

• the British-Irish Intergovernmental Conference which will enable the British and Irish Governments to consult on all matters of mutual concern, including non-devolved Northern Ireland matters.

Second, there are our proposals for London. No other capital city in the world of the stature of London has to manage without a city-wide authority to look after its strategic interests. Yet that has been the position of London since 1986. We will give London the voice it needs and deserves by creating a city-wide strategic authority, consisting of a powerful directly-elected mayor and a separately elected Assembly.

Third, the English regional dimension. We are keen to move quickly to implement our Manifesto commitments on the regional agenda in England. We recognise that the interests of the English regions have been neglected in recent years, and we aim to remedy that. The first step will be to establish regional development agencies, under the new Regional Development Agencies Act, in order to improve competitiveness and to provide for effective co-ordination of economic development. We remain committed to more accountable regional government in England. But we are not in the business of imposing unwanted solutions. There is much we believe we can do within the present democratic structures to build up the voice of the regions. Local authorities are already coming together with business and other partners to form voluntary regional chambers and to create a more integrated regional approach. We remain committed to move to directly elected regional government in England only where clear popular consent is established for that. Finding the right solutions may take time, just as arrangements in Scotland, Wales and London have taken time.

Fourth, reform of local government. Councils are local, directly elected bodies uniquely placed among our institutions to make things happen on the ground. But, as we made clear in our White Paper, In Touch with the People, a fundamental shift of culture throughout local government is essential. Our aim is a radical refocusing of councils, both to give local people a bigger say about the affairs of local communities and to give them a better deal on local services. It is a programme of reforms which has now begun and will stand for 10 years or more. In keeping with our beliefs, there will cease to be a uniform structure for local government across the whole of the country. It will be for the people to choose the local arrangements that they feel best suit the needs of their local areas.

Fifth, modernisation of the House of Commons. It is vital to the health of our democracy that we reverse some of the ineffective and old-fashioned working practices of Parliament. We have therefore begun the modernisation of procedures in the House of Commons, through a special parliamentary committee. This has already produced a fuller and clearer explanatory note for Bills, replacing the notes on clauses. A special Standing Committee will consider the Asylum and Immigration Bill. Pre-legislative scrutiny of the Financial Services and Markets Bill will start early in the New Year in a joint committee of both Houses. Greater pre-legislative consultation and scrutiny will improve the quality of legislation.

Sixth, Lords reform. We are about to embark on a Bill this session to remove the right to sit and vote of hereditary peers, as a self-contained reform, heralded with the utmost clarity by our Manifesto. But if Cross Benchers promote an amendment for the interim retention of 1 in 10 of the hereditary peers, 75 out of 750, plus some hereditary office holders, until the House of Lords is fully reformed; and if they secure for it the support of the House, so that the House is not cynically manipulated, by the minority Conservative Party in the elected House of Commons, to frustrate the legislative programme of a Government with a huge popular majority in the country, then the Government would accept that amendment as a prudent and responsible route towards the early termination of the right of all hereditaries to sit and vote in the House. Pragmatism and compromise, where they promote the smooth evolution of our constitutional arrangements, are in the British tradition.

Then there is Freedom of Information. Some claim that the omission of a Freedom of Information Bill from the first Queen’s speech, and the promise of a draft Bill only in the second, represent an early conversion by the Government to the joys of official secrecy. Nothing could be further from the truth: but the legislative programme cannot accommodate at once everything we should like to see. The main features of our proposed regime, as spelt out in our White Paper Your Right to Know, surprised even the veteran campaigners for freedom of information by the degree of openness it proposed. When enacted, the Freedom of Information Act will provide a legal right to see documents, not just information in a form decided by Government bodies. It will apply right across the public sector, including some private sector organisations in the areas where they carry out public functions. The system will be weighted as heavily as possible in favour of openness. It will be overseen by an independent Information Commissioner, who will have wide-ranging powers, including the power to order disclosure, subject to appeal to a specialised tribunal.

Next we come to a whole raft of remedies to address the crisis of confidence in our political and electoral systems. First there is the question of the registration of political parties, covered by the Registration of Political Parties Act 1998, itself a necessary precursor to electoral systems involving party lists. But we shall be going much further, by acting on the main findings of the Neill report on the funding of political parties. This, of course, was not a matter which the previous Conservative Administration showed any inclination to address. But it is our firm view that the integrity of the political system can only be assured if political parties are open and accountable. That is why we intend to legislate to ensure that fair and effective controls are in place for the next general election, and that elected politicians will act for the good of the community as a whole, not for sectional or personal interests.

We have also brought about a number of significant changes in our systems of election, with a degree of PR for Scotland, Wales and Northern Ireland and in due course London. We have arranged referendums on several of our proposals the detail of which I will address later.

The Government has also decided that its sweeping programme of constitutional reform must be matched by a radical modernisation of the effectiveness of Government. Thus the machinery of Government, as much as our constitutional arrangements, have to be modernised. The objective is strategic policy working across government boundaries rather than within departmental limits in pursuit of a vision of a Government focusing on the outcomes it wants to achieve, devolving responsibility to those who can achieve these outcomes and then intervening in inverse proportion to success.

A Cabinet Committee under Jack Cunningham has been established to carry this project through and to prepare a “Modernising Government” White Paper for publication next Spring.

So is it a coherent programme?

I dispute any proposition that our programme lacks coherence. We made conscious choices about precisely which aspects of our constitution needed earliest attention, and on what basis. We are conscious of the way different elements of any constitutional settlement can impact on each other. Nonetheless many elements of the package are not interdependent. Nor is there any reason why they should be. Many of the measures are responses to particular problems which are the product of lengthy and complex pre- histories of their own.

Each strand of our constitutional reform programme is well justified on its merits. The strands do not spring from a single master plan, however much that concept might appeal to purists. Non sequitur that they are incoherent. There are uniting themes and objectives - modernisation; decentralisation; openness; accountability; the protection of fundamental human rights; the sharing of authority within a framework of law - all of which will fundamentally change the fabric of our political and administrative culture. In a sentence: our objective is to put in place an integrated programme of measures to decentralise power in the United Kingdom; and to enhance the rights of individuals within a more open society.

The Human Rights Act

The guiding principle of the Act has been the need to secure human rights protection while respecting constitutional propriety generally, and the doctrine of parliamentary sovereignty in particular. The key question for us in making the Convention rights enforceable in domestic courts has been determining its status in relation to domestic subordinate and primary legislation. How could we reconcile the superior status of Convention rights, to be enforced by British judges in our courts, with Parliamentary sovereignty?

First the Human Rights Act 1998 introduces a new rule of construction that, as far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights. Second in cases where subordinate legislation is held to be incompatible with Convention rights, despite this rule of construction, the courts will be able to set the inconsistent provisions aside to the extent necessary to allow full effect to be given to Convention rights. Third, if primary legislation is held to be incompatible, the courts will still have to enforce it, but the higher courts will be able to make a declaration of incompatibility in respect of them. This is a unique remedy. It will create acute pressure to amend the law to bring it into line through a fast- track remedial procedure, subject to Parliamentary approval, or through primary legislation.

Also, from the start of the current Parliamentary Session, every Minister in charge of a Bill will have to make and publish a written statement before Second Reading in each House about its compatibility with the Convention rights. Only a few days ago I did just that for the Access to Justice Bill.

The responsible Minister will have to ensure that the legislation does not infringe guaranteed freedoms, or be prepared to justify its incompatibility with the Convention openly and in the full glare of Parliamentary and public opinion. We have brought this important provision - section 19 - into force ahead of the rest of the Act. We believe that it will make a significant contribution towards the creation of a culture of respect for human rights at the heart of our democracy. Both these techniques, the declaration of incompatibility (by the courts) and the statement of compatibility (by Ministers) are pragmatic: the first reconciles judicial power with Parliamentary sovereignty: the second causes Ministers to stand up and be counted for human rights.

The scheme of the Act offers a modern reconciliation of the inevitable tension between the democratic right of the majority to exercise political power through the legislative process; and the democratic need of individuals and minorities to have their human rights secured.

Public Consultation and Referendums

We have not declared that a referendum must precede all changes with any constitutional dimension. An unequivocal Manifesto commitment can obviously be sufficient democratic warrant: as with our pledge on the hereditary peerage. On the other hand we would only join our European partners in a single currency if the Government, Parliament and British people agree in a referendum we should do so.

So the fairness of referendum procedures has to be addressed. The Neill Committee has recommended that a new regulatory framework should be overseen by its proposed Election Commission. To that we will give careful thought. As Professor Bogdanor said in his evidence to the Neill Committee: if one purpose of a referendum is to secure legitimacy for decisions where Parliament alone cannot secure that legitimacy, then the losers in the referendum campaign have to feel that the fight was fairly conducted. [Quoted in paragraph 12.4 of Neill Committee.]

As the Home Secretary has made clear, we shall be giving careful consideration to all the Neill Committee’s recommendations on the conduct of referendums and we will examine how best to take them forward in the context of the draft Bill which we will be publishing by next year’s summer recess.

Electoral Systems

Although there will be a number of different electoral systems in play as a result of the changes we are making, each is, we believe, apt in the circumstances. Again our approach is pragmatic. No electoral system is perfect: each has advantages and disadvantages which have to be assessed in the particular circumstances of the case. Our objective should be - and in our constitutional reforms it has been - to find the electoral system appropriate for the elected institution concerned.

Thus, in Northern Ireland, it is not surprising that the parties to the Belfast Agreement concluded that Proportional Representation, using the single transferable vote in multi member constituencies - with six people being elected for each of the 18 parliamentary constituencies - was the best system for their Assembly.

It may achieve a fair and proportional result within a constituency, because secondary and subsequent preferences are counted and a relatively high proportion of votes affect the result. It is also a system familiar in Northern Ireland, since it has been in use for some time for District Council elections, for European Parliamentary Elections and was used in earlier Assembly elections, It was indeed the system originally used in Northern Ireland when that jurisdiction was first established, and it is also in use in the Irish Republic. Nonetheless the system does have its own draw backs. For example, it does not necessarily achieve a fully proportional result; and, since it requires multi-member constituencies, the system does not achieve the close identification with constituencies which single member systems do. It was, however, the system thought right for Northern Ireland. This evidences that our approach is pragmatic, promoting the possible by building on prior history and experience.

When we came to decide the electoral system for the Scottish Parliament, the National Assembly for Wales and the London Assembly, the importance of single member constituencies weighed strongly with us. In the absence of community tensions like those in Northern Ireland, the most important consideration was that these bodies will perform functions which will have a very direct impact on the lives of the people of Scotland, Wales and London respectively. It was therefore important that voters should have a single representative to whom they could turn with their problems. That is why the majority of members of each will be directly elected in individual constituencies using the first past the post system.

However we took the view that it was also important that these three bodies should truly represent the people of Scotland, Wales and Greater London. We were anxious to ensure that all points of view and all sections of the community would be reflected in the elected institutions concerned. Consequently, voters in each area will have two votes, the second being used to elect the additional, “top-up” members. Thus in Scotland, for example, there will be 73 members elected from single person constituencies, with 56 additional members being elected from regional lists based on the European Parliamentary Constituencies. The regional seats will be allocated to ensure that the overall result, taking account of the outcome of the constituency elections, will more directly reflect the share of votes cast for each party. So overall each party should win a share of the total seats broadly proportionate to its share of the total of votes in the region concerned. The system thus retains the advantages of a significant proportion of members from single member constituencies, with a much more proportional result than would be achieved by first past the post alone.

By contrast, for the directly elected Mayor for London, we decided on the supplementary vote system: that is, in effect, a system of improved first past the post. We did this because the Mayor will be in a unique position. Never before has so large an electorate voted for a single individual. The Mayor will be charged with protecting the interests of 7 million people in one of the most diverse cities in Europe. The Mayor must represent a broad cross section of Londoners. The supplementary vote system allows voters to record both their first choice, and their second choice, with second preference votes used to ensure that the more popular of the top two candidates wins. The Mayor’s authority will be enhanced by the fact that he or she will enjoy a broader base of support than might be achieved by first past the post alone. All this demonstrates our hostility to uniformity or symmetry for its own sake.

We remain of the view that what we have been proposing for European Parliamentary Elections is right. The European Parliament is a representative body, but no government or executive is drawn from it. The Bill, once more before Parliament, provides for the use of a regional list system. Electors in each region will vote for a party’s list of candidates with seats allocated according to the shares of the vote. But the individual candidates’ names will, of course, appear on the ballot paper. We believe this to be the right system to use for electing Great Britain’s MEPs. It is used successfully in a number of other European countries.

Clearly the most important election in our system is that to the Westminster Parliament. As promised in our Manifesto, we appointed a Commission, under the distinguished chairmanship of Lord Jenkins of Hillhead, to consider an alternative electoral system to the existing first past the post to be put before the people in the Government’s proposed referendum. The Commission was invited to observe four requirements: for broad proportionality, the need for stable Government; an extension of voter choice; and the maintenance of a link between MPs and geographical constituencies.

The report notes that these four requirements are “not entirely compatible” but equally are not “absolute”.

The Commission recommends a two vote mixed system. Under this system between 80% and 85% of the members of the House of Commons would be elected from individual constituencies. Since the total number of MPs would remain unchanged, constituency boundaries would need to be re-drawn, and constituencies made correspondingly larger.

The constituency members would be elected using the alternative vote system under which second and subsequent preference votes would be taken into account to ensure that the person elected had the support of more than 50% of those who vote.

The other 15-20% of members of the House of Commons would be elected regionally on a top-up basis to mitigate any disproportionality in the constituency results. The benefits of single member constituencies would be retained and combined with regionally elected top- up members to achieve a greater degree of proportionality than would otherwise occur.

The Commission, in a sentence which Lord Jenkins has said best crystallises their approach, characterises the system thus: “Our proposition for this country stems essentially from the British constituency tradition and proceeds by limited modification to render it less haphazard, less unfair to minority parties, and less nationally divisive in the sense of avoiding large areas of electoral desert for each of the two major parties.” That too is the language of pragmatism.

The Government welcomes the report and has made clear that it wants to study it in detail. There has already been a debate in the House of Commons. More generally the Government wants to encourage a wider national debate; but the report itself makes clear that the system recommended could not be introduced until the election after next. And the Government believes that decisions on Jenkins will need to be looked at as part of the constitutional reform programme as a whole.

Sharing the Union, Renewing the Union

So I have said enough to make clear why I reject criticisms based on want of uniformity, symmetry or purism. The diversity of the separate parts of the United Kingdom and the singularity of its histories, though crucially intersecting, are conclusive against uniform programmatic outcomes. Devolution is not a form of either federalism or independence for Scotland, Wales, or Northern Ireland. The Westminster Parliament will remain sovereign. The Union will be renewed, not weakened by devolution: it will be able to evolve in a way which decentralises power, recognises a strong sense of identity where that exists and extends political accountability.

Devolution needs courage; but I say it will forge a new Britain - a strong, multi-national, multi-cultural, multi-ethnic, country, where our strength will come not from uniformity but from our diversity; not from a flattening process of programmed assimilation, but from democratic renewal through mutual toleration and respect. True there must be continuing co-operation. And there will be arrangements to ensure that the UK Government and the devolved administrations co-operate on issues of common interest. We envisage the establishment of a Joint Ministerial Committee in which the UK Government and the devolved administrations will be members. And also there will be Concordats between Whitehall Departments and their counterparts in the devolved institutions which will be models for future co-operation.

Conclusion

After many decades of sterility we have embarked on a major programme of constitutional change realigning the most fundamental relationships between the state and the individual in ways that command the consent of the people affected. We are not, however, hunting the chimera of constitutional master plans, nor ultimate outcomes. Too easily these can map out well intentioned routes to disaster. We prefer the empirical political genius of our nation: to go, pragmatically, step by step, for change through continuing consent. Principled steps, not absolutist master plans, are the winning route to constitutional renewal in unity and in peace.

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