POLITICS
No need to rush. It's only 87 years since the government announced its policy
BRUCE ANDERSON
The British constitution is now unsta- ble. Not since 1689 has so much fundamen- tal change been introduced so rapidly; never in British history have so many basic changes been introduced so thoughtlessly. Anyone who wants to understand previous eras of constitutional change can seek guid- ance from some of the greatest minds of the time. Locke did not drive James II into exile, but he had an influence on many of those who did. But where is the Locke of new Labour? If, 20 years on, confronting the muddle the current changes have creat- ed, some scholar should enquire what the Blair government thought it was doing, he would enquire in vain. On Scotland, the judiciary and — to come — the House of Lords, the changes are solely the product of opportunism and expediency.
Scotland is to become a federal enclave in a unitary state, thus guaranteeing con- flict. Scotland is not a federal unit; it is a nation. Its parliament will inevitably become the focal point for Scottish nation- al identity; buoyed up by that, it is bound to press for an enhanced jurisdiction, and more money. The English, meanwhile, will discover that for them, the new arrange- ments offer all the disadvantages of feder- alism and none of the advantages. In a word, they will be 'unfair', the only war-cry guaranteed to rouse the English out of their political torpor. It is impossible to predict the course of Anglo-Scottish rela- tions over the next few years, but on two points we can be certain. First, the current devolution measure is not a final settle- ment, but only the initial step into an unknown future. Second, far from assuag- ing Anglo-Scottish relations, it is likely to exacerbate ill-feeling, by dissatisfying the Scots while antagonising the English. In the longer term, English nationalism is the gravest threat to the Union.
We are also to have a bill of rights. Over the past few years, there has already been an alarming growth in judicial activism. A less embattled, more self-confident govern- ment than John Major's might have reminded the judges about the separation of powers. But now, the judges are to be given vague but extensive new powers; a dangerous combination. Again, no one can foretell the consequences of incorporating the European Convention on Human Rights into British law, but we may well end up with a politicised senior judiciary — as Mr Hague has acknowledged — and a much greater use of litigation to resolve political questions. It will also be much hard- er for solicitors or counsel to give their clients confident advice as to what the law is.
The government also intends to reform the House of Lords, but in two stages. Under the first, hereditary peers would lose their voting rights and be replaced by nomi- nees; that would involve the greatest ever extension of prime ministerial patronage. When challenged on this, the government insists that the second stage would quickly follow, with a new second chamber based on . . based on something that everyone will like and no one but fuddy-duddies could possibly object to. When pressed for further details, ministers always try to change the subject, because they are unable to answer. They are even less convincing about their plans for the second chamber than they are about the Dome — and there is a good reason for this.
Stage one arises from Labour's visceral dislike of the hereditary principle; that much is easy. Stage two, however, has defeated all would-be Lords reformers since 1911, for an obvious reason. The momentum propelling the anti-hereditaries is, of course, democratic, which is why no proposal for a nominated chamber has ever taken wing. But we already have a demo- cratic chamber, which enjoys an unchal- lengeable claim to legitimacy, and primacy. A second democratic chamber would be able to challenge that primacy, in a way that a hereditary House never could. That explains the failure of the post-1911 reformers; they have foundered because a reformed second chamber would inevitably become stronger than the Lords now is and at the expense of the Commons.
That also explains why there have always been closet Lords reformers among the ranks of thoughtful Tories, at least since 1911. They may have a sentimental attach- ment to the current House of Lords: dull would he be of Tory soul who did not revere the present arrangements. But a wise Tory might also ask himself whether the Lords ought to be allowed to decline into a mere ermined adornment, or whether it has work to do, acting as a check and balance on the lower house. If so, it may be unable to do that work effectively as long as it retains its present composition.
The checkers and balancers can point to that lamentable piece of legislation, the War Crimes Bill. In both Houses, the Bill's opponents won the argument, which meant that in the Lords, they also won the vote. The Commons' Whips put that right, how- ever, and the reduction in the Lords' delay- ing powers imposed by the 1949 Parliament Act enabled the Bill to become law — and so vindicate everything its critics had said about pointlessness and waste of money. But is there any point in a House of Lords which cannot stop the War Crimes. Bill? That is why Mr Hague was right to avoid being dragged into a rigid defence of the status quo; he who defends everything, defends nothing. As he made clear in his speech on Tuesday, Mr Hague is deter- mined to take the intellectual offensive in the constitution debate. By discussing the principles which should underline reform, including curbs on the powers of the Com- mons, he thinks that he can turn Labour's flank. This government is never at ease when discussing principles, while its sup- porters in the Commons will be most unhappy if they discover that Lords reform means a new chamber with more power. As previous Labour governments have discov- ered, it is much easier to denounce the cur- rent House of Lords than it is to replace it.
So the Tory traditionalists need not despair, yet. By rejecting the two-stage strategy and insisting that there should be no partial reform of the Lords, Mr Hague can mount a convincing challenge to the government. Had he merely defended the hereditary principle, that would have been much harder. It would, of course, be naive to overestimate this government's suscepti- bility to intellectual challenges; it tends to forward any such correspondence to its whips, for appropriate action. But in a year or so's time, the government may not be as popular as it is now; its arrogance in over- riding arguments may have started to grate on the public. It might find it much harder to embark on Lords reform without answering Mr Hague's questions, which it would not enjoy doing. It could then be tempted into procrastination; a royal com- mission or some such.
The Liberal framers of the 1911 Parlia- ment Act declared that the reform of the Lords' composition brooked no delay. In logic, they were right. But life is often more complex than logic. Eighty-seven years on, the scope for delay is by no means exhausted.
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