And the prize for constitutional illiteracy goes to….

John Morrison
21 April 2010

A decade ago, after a spell of Blair-watching as a lobby correspondent, I spent a year writing a book on Labour’s post-1997 constitutional reforms.  I gave them a mixed review, concluding that the landmark policies Blair inherited from John Smith, such as the creation of the Scottish parliament and the Human Rights Act, were accompanied by muddle and incoherence almost everywhere else.

At the time the Tories had nothing of interest to say on any of these matters. The traditional Conservative view of the British constitution had barely changed since Bagehot and Dicey: ‘If it ain’t broke, don’t fix it.’  The British system of government, they argued, was an example to the world, parliament was sovereign and would remain so, and Labour’s reforms were nothing but ‘vandalism’.

Ten years on, the prospect of electoral defeat has suddenly reawakened Labour’s dormant reformist instincts in areas such as a written constitution and a referendum on voting reform. It’s a purely opportunistic shift, and we should remember that Gordon Brown’s promise of a referendum on the Alternative Vote falls well short of the referendum on a proportional system which Blair promised in the late 1990s, then quietly forgot.

But on the Tory side, the mood music has changed completely.  Some of the old tunes are still being whistled by David Cameron and his team; their current election manifesto says: Labour’s constitutional vandalism has weakened Parliament, undermined democracy and brought the integrity of the ballot into question.  (I happen to agree that postal voting has undermined the secret ballot, but the Conservatives have conveniently forgotten that they never opposed it).

But the main thrust of their argument has changed: We need to change the whole way this country is run.  The British political system, far from being an example to the world, is now broken and suffers from what the manifesto calls fissures between politicians and the voters.  The Tory diagnosis is that the top-down model of power that exists in Britain today is completely out of date.  Centralism might have been justified once (perhaps Mrs Thatcher was right?), but now technology has changed everything, and British politics needs to catch up.  The remedy is something called people power, which the manifesto defines as a sweeping redistribution of power from the state to citizens.  Under this new agenda for a new politics power will be taken away from the political elite and handed to the man and the woman in the street. 

What does this mean in detail?  The language sounds radical but the substance is strangely lacking.  The manifesto says that revelations about expenses have stripped away the dignity of Parliament, and the Tories say they will restore the reputation of politics.  They promise a deep clean of the Westminster system to root out the sleaze and dispel suspicion.  It’s the political equivalent of calling in Dynorod to clear a blocked drain, leaving the plumbing intact.  The measures on offer include a right to recall errant MPs, a cut in the size of the House of Commons and limits on influence-peddling.  Voters are even promised a cap on political donations, something which the Tories helped to block not so long ago.  Petitions from the public will be debated in parliament, referendums – once shunned by Conservatives as an infringement on the sovereignty of parliament – will be flavour of the month, and there will be a mainly-elected second chamber to replace the current House of Lords.

It all sounds like a breath of fresh air, but it’s a lot less radical than it sounds. The concepts of democracy, pluralism, checks and balances, and separation of powers seem to be missing.  The biggest weakness is the pledge to maintain the first-past-the-post voting system, whose manifest unfairness to all except the two biggest parties makes nonsense of any Tory claim to take power away from the political elite.  The promise of a mainly elected second chamber marks a retreat from the idea of a wholly elected and democratic upper house, with which the party flirted not long ago.  What is missing is any understanding of the role of the voting system in maintaining the dysfunctional relationship between the legislature and the executive in the British system – the ‘elective dictatorship’ which a famous Conservative politician once referred to.  There is no recognition of the fact that first-past-the-post disenfranchises millions of voters in non-marginal seats and delivers a lopsided majority in parliament.  The promise of widespread decentralisation is more apparent than real, because any real shift of power away from Westminster would mean the Treasury surrendering to local government more financial autonomy and revenue-raising powers. But the idea of fiscal decentralisation appears nowhere in the manifesto.  A genuinely radical political settlement would mean entrenching local powers so that no future government could abolish them, but this would be – horror of horrors – a form of federalism and imply the need for a written constitution.

The manifesto’s overriding flaw, in this area as in others, is that the Conservatives seem to want to face both ways at once.  That hoary old constitutional myth, the sovereignty of parliament, is alive and well in Tory thinking, as if the ghost of the long-dead A V Dicey had been asked to edit the manifesto.  This discredited Victorian mountebank’s ideas still dominate Tory thinking, at least in the section devoted to Europe. We will introduce a United Kingdom Sovereignty Bill to make it clear that ultimate authority stays in this country, in our Parliament.  In fact European law has had precedence over UK law since 1972, but such contradictions can apparently be wished away by the simple expedient of not thinking about them.  Have any of the manifesto’s authors stopped to think about a possible conflict between the shibboleth of parliamentary sovereignty and the party’s new-found enthusiasm for people power and referendums?  It appears not.  As a substitute for intelligent thought, there is a demagogic appeal to populism over the parliamentary ratification of the Lisbon treaty, denounced as a betrayal of this country’s democratic traditions.  So who is really sovereign in the new Tory Britain?  Is it the people, or is it the Queen in parliament?  Any A-level politics essay writer aiming for better than a C grade would do better than this incoherent nonsense. 

A few years ago Oxford professor Larry Siedentop wrote a book noting that the British were the least constitutionally literate people in Europe.  Cameron’s Conservatives with their muddled manifesto seem keen to ensure that glorious tradition is maintained. 

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