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The weakness of Power: fixing Britain’s democracy

Stuart Weir
8 March 2006

The political executive in the United Kingdom is extraordinarily well protected by the doctrine of parliamentary sovereignty that seems to secure representative government while in practice denying it. This doctrine keeps the people firmly outside the gates; but, as the Power inquiry into the condition of Britain's democracy recognises, it also locks out the reformers – those who want to open the gates of power to popular (not executive) democracy, and thus to a wider and more participatory politics. The difficulty for reformers is that the two main parties, Labour and Conservative, hold the keys to the gates and have no intention of throwing them open to "we, the people".

The Power inquiry, an independent investigation into the condition of democracy in Britain, was set up in 2004. The members of its commission (whose chair was Helena Kennedy and vice-chair Ferdinand Mount) hosted meetings around Britain and heard submissions from a wide variety of interest groups, professionals, and concerned citizens. The commission published its report on 27 February 2006:

For details of further events and to find out how to get involved, click here

For debate and dialogue on the commission's proposals, go to mySociety's new site, Comment on Power

As in 1997, when the "New" Labour government headed by Tony Blair was elected, we are at a moment when these parties are ready to give us enticing glimpses of power through the gates to indicate a willingness to share powers, if not power, with the people. So there is the prospect of some movement on, say, limited reform to the royal prerogative or an undefined "new localism".

But as Power states with urgency and conviction, the structures of the current system have to be dealt with in a systematic way if Britain is to become a mature representative democracy. A narrow "war powers act" that simply demanded parliamentary approval for a prime minister's adventurism makes no sense when the executive has so much control of parliament; new parish councils or citizens' juries, each with marginal influence, offer no answer when local government is kept ruthlessly under central controls and denied sufficient resources to make a difference.

As Power states, Britain requires at the least a new settlement that rebalances power between the executive, parliament and local government; introduces more "responsive" electoral systems (and thus more choice between parties); and gives the public a more direct say over political decisions and policies. A list of thirty recommendations then follows, rounded off by the ringing declaration of belief in a sustained popular campaign for change: "We, the people, have to stake our claim on power".

The concordat solution

It is at this point, however, that the inquiry had to confront a key problem: that the gatekeepers of power in the UK (let's call them the "political classes") are implacably opposed to holistic change. They do not trust "the people" and have no intention of sharing power with them. Instead of facing up to this reality, the inquiry's nerve failed and it sought to dissociate itself from previous reform campaigns, including the radical, and popular, Charter88 demand for a written constitution. Instead, Power has looked for a way forward that the political classes may find acceptable (and employs a sometimes deliberately imprecise language) and in doing so has taken a tortuous course into a no-exit alley where its belief in popular democracy is renounced.

The Power report argues convincingly that parliamentary conventions are not clear or robust enough within an unwritten constitution to ensure that parliament can hold the executive effectively to account. But its authors then retreat into the tradition of hostility to proposals for a written constitution, arguing that an arrangement which works remarkably well for any number of more democratic, responsive and socially just regimes would be both "rigid" and "unresponsive".

This is really unworthy stuff, made worse by what follows. For they then propose that the executive and parliament should agree a concordat which would have the advantage over a written constitution of being "flexible" and capable of being "revisited" – precisely the same merits that traditionalists assign to conventions within an unwritten constitution.

They justify their proposal by arguing that to demand a written constitution would fatally weaken the chances of reform and strengthen the hands of those who oppose greater constitutional clarity. They go on to dignify the proposal with the rider that the concordat should be drafted by a body that commands the respect of both the executive and parliament (reformed or not, it is not clear) and seems sufficiently independent to the public to ensure that its proposals are rigorous. The body they suggest would be stuffed with parliamentary worthies leavened by "political and constitutional specialists".

Stuart Weir is director of Democratic Audit at the Human Rights Centre, University of Essex, and a consultant to the Joseph Rowntree Reform Trust on the State of the Nation polls. He is co-author of Voices of the People: popular attitudes to democratic renewal in Britain (2001), Democracy under Blair: a democratic audit of the United Kingdom (2002), and The International IDEA Handbook on Democracy Assessment (2003)

Also by Stuart Weir in openDemocracy:

"Democracy? Yes!"
(July 2004)

"The rules of the game: Britain's counter-terrorism strategy" – with Andrew Blick (November 2005)

"In whose name? Democracy and British foreign policy" – with Simon Burall
(January 2006)

This is of course the very stuff of old – that is to say, current – politics. This is just the kind of body that governments turn to when they require wriggle room. And after the experiences of John (Lord) Wakeham (appointed by New Labour to chair the commission examining reform of the House Of Lords) and the electoral commission (established by New Labour following recommendations from University College London's Constitution Unit), I for one am very sceptical about the ability of outside specialists to act as platonic guardians of the public good.

But here we come to the crux of Power's weakness. Perhaps, to be fair, the report's authors envisage that the concordat would be placed on a statutory footing, and thus be given some clarity and force. But they don't say so. In their parallel proposal for a concordat between the centre and local authorities, they do at least envisage the deal being sealed by legislation. In neither case is it clearly stated that the public would be given a "more direct say" in the deliberations of negotiations over a concordat. (In the case of the central-local deal, they propose negotiations by ministers and appointees on the one hand, and by members of the Local Government Association on the other.)

The tragedy is that in both cases they abandon the central proposition of their whole thesis, and at the very point where they should be seeking to ensure that the people should be enabled to "stake their claim on power" nationally and locally. The commission's own admirable report, Beyond the Ballot, by Graham Smith, contains enough evidence that responsible ways of involving people in such central decisions are being explored around the world and could be employed in Britain.

However, Power has quite another precedent in mind. The inspiration for the proposal for a concordat is apparently the concordat that was negotiated between the lord chancellor Charles (Lord) Falconer and the lord chief justice Harry (Lord) Woolf on behalf of the executive and judiciary respectively, and announced in January 2004. This was hardly the stuff of a new open politics; indeed, Joshua Rozenberg, legal correspondent of the Daily Telegraph, was inclined to describe it as a "cosy deal". The event certainly, as Power says coyly, "took place without fanfare".

The need for such an agreement arose from the government's sudden proposals to abolish the position of lord chancellor and to create a supreme court to replace the appeals committee of the House of Lords. The proposal to abolish the lord chancellor caused concern among the judiciary, particularly in respect of the possibility that it could affect the independence of the judges. Throughout summer 2003 there were political rumblings because of the farcical way in which the proposals were made. Harry Woolf and other senior judges made increasingly hostile statements and Woolf (in a March 2004 lecture) even floated the idea that the United Kingdom required a written constitution.

On 26 January 2004, Falconer announced that as a result of discussions with Woolf, a concordat had been reached between the executive and the judiciary on judicial aspects of constitutional reform which would be incorporated in legislative proposals. The statement was made in the House of Lords and the lord chief justice took his place in the house to endorse the proposals and confirm that they were supported also by his senior judicial colleagues. The whole process on 26 January 2004 took sixty-four minutes.

Also in openDemocracy on the Power inquiry:

Ferdinand Mount, "The Power inquiry: making politics breathe" (February 2006)

John Jackson, "A democracy in trouble" (March 2006)

Roger Scruton, "Power inquiry, public debate" (March 2006)

Pam Giddy, Adam Lent, "Talking to power" (March 2006)

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The Conservatives complained mildly about the "secret" negotiations. The details of the proposals were placed in the libraries of both houses. The main features were a new statutory duty on ministers to uphold the independence of the judiciary, the redistribution of the lord chancellor's duties between a secretary of state for constitutional affairs and the lord chief justice, and the creation of a judicial appointments commission.

On 12 February 2004 the terms of the concordat and the supreme court proposal were debated in the House of Lords. In 2005 the Constitutional Reform Act incorporating most of the proposals became law. The position of secretary of state for constitutional affairs survives as does the position of lord chancellor; Charles Falconer currently holds both.

Between the lines

The Power inquiry regards this deal as a template for the reforms that it advocates. But it raises five questions:

  • does it really give the judiciary the independence that they should enjoy?
  • are undisclosed discussions between the executive and the judiciary a satisfactory way of reaching proposals on constitutional matters, particularly when they assume what the proper roles of the executive and the judiciary are?
  • how satisfactory is such a deal in the Power inquiry's scheme of things when the popular chamber (the House of Commons) and the public are not involved and are barely informed about its terms?
  • how far were these undisclosed discussions in the minds of the law lords when, in the second half of 2003, they were required to deliver judgments in a number of cases in which government departments were either the appellant or respondent – and thus ruling on challenges to the constitutional propriety of government action?
  • have the full minutes of the concordat discussions ever been published?

There is much else in the report that is worthy of respect and debate. It is a matter for regret that its authors don't demonstrate sufficient faith in their central idea; and also that their proposals often do not have the precision that could strengthen the hands of the public and other reformers.

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