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Lord Lester: my life as a goat

Lord Lester, writing in the Guardian today, explains why he resigned as the government’s independent adviser on constitutional change. I have some sympathy for Lord Lester – he had the experience (that many civil servants have had) of finding out his role and position was in reality quite different from the one he was offered, and of discovering that ministers were not so committed to constitutional change as he’d thought. But I see it through different lenses. While I agree with a number of Lord Lester’s ideas, I certainly don’t agree with all of them: I think a War Powers Act is unnecessary; I do not share the fashionable view that the Attorney General’s role must be significantly reformed; and I think adopting a written constitution would be a historic blunder.

I see this as a story of constitutional whimmery, alighted on by a new Prime Minister in search of purpose – a whimmery that has slowly retreated as the relative sense of Jack Straw, Baroness Scotland and their allies have won the arguments. Two things Lord Lester says I agree strongly with, however.

First, he’s right that the Consitutional Reform and Governance Bill is “a mouse”. I said it was watered down to a homeopathic degree. Second, he’s right to say that the government has no mandate for constitutional reform. That does raise the question of what Lord Lester thought he was doing pressing it to make radical changes, and why he says it had the “opportunity of a generation” – but in any case, I’m glad it’s given up on the more controversial, less sensible of its earlier ideas.

By the way, I find one of the things Lord Lester says a little mysterious. He talks of

a modern democratic system of government… and a new constitutional framework… That would strengthen… our bargaining position within the EU.

I’m not sure how he thinks constitutional reform could strengthen our hand in European negotiations, unless he means the UK should have compulsory referenda for all new EU treaties – as Ireland does.

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  1. As I have said before, I dislike any single political party instigating constitutional reform. Lord Lester must have been seduced by the "opportunity of a generation."

    It would be exceptionally naive to think that Ministers are about reducing their own powers. they are more interested in increasing them. That, sadly, is the essential nature of the creatures known as "politicians."

    I agree that a War Powers Act should not be necessary IF the House of Commons asserted itself as a questioner of Ministers. Events over Iraq proved it to be supine (with certain honourable exceptions – e.g. the late Robin Cook).

    The role of the AG is very problematic and seems likely to remain as it is – at least for now. However, I think that you have persuaded me with your argument about the legal advice being, at least generally, confidential. I retain some doubts as to whether it should be in all circumstances.

    A written constitution would be the biggest blunder of all time. It should not matter a jot that we are one of the few countries not to have such a document.

    Any "mandate" (and this is a very vague doctrine) which the present government had has by now evaporated. Any party seeking to make further constitutional changes or any other form of radical legislation ought to now place its ideas before the people and explain its ideas. The fact that this is not happening says an awful lot about the wish of politicians to remain in office come hell or high water. It is self first: party second and the country can take the hindmost.

    As for "a modern democratic system of government… and a new constitutional framework… That would strengthen… our bargaining position within the EU" – it is high time that people like Lord Lester said what they mean in ordinary language and not in code.

    The relationship of British governments to the EU could fill several volumes. However, they generally like to paint the EU as the "baddie" whilst actually signing up to just about everything which emanates from within the EU. Of course, with enlargement, the voice of the UK has diminished. I too have difficulty seeing how constitutional changes here would bolster our bargaining position but perhaps Lord Lester might explain his reasoning sometime. Doubt that he will to a mere mortal like myself however.

  2. I agree with a lot of that, Peter.

    As far as a War Powers Act is concerned, remember Parliament voted for Iraq – you may oppose that decision, think it tainted by lies and illegality, and so on, but the fact is that had a War Powers Act been in place in 2002, Parliament would still have voted for military action. In my view the new constitutional convention (and I think it is already one) that Parliament will vote on military action is as good in every practical sense as a War Powers Act.

    On the AG's advice, I agree about it not being kept secret in all circumstances – I think as with Cabinet minutes, the Information Commissioner should be empowered to order disclosure if the advice shows evidence that Parliament or the public have been misled or of other wrongdoing by ministers. I also think that decision should be final, subject only to court rulings: the government itself should have no final veto.

    I think it'd be absolutely right for politicians here to commit in advance to referendums on further EU treaties – it certainly would strengthen the UK's hand, it would be the right thing to do democratically and it's essential if trust is to be rebuilt on European policy. But we don't need constitutional change in order to make such a commitment.

  3. Carl, I agree that there was a vote about Iraq – it was on 18th March 2003 – 396 ayes to 217 noes. Military action commenced on 20th March. This is a typical ploy of Ministers. They use the prerogative power relating to disposition of the Armed Forces to put all the Forces in place and then, just before the whistle blows to go over the top, they allow the Commons to have a vote. It's all rather stage-managed in my view.

    Was Lord Lester talking about referenda? Maybe. They could be held without any constitutional change – we had one before (June 1975) but the vote then was, in reality, about whether to leave Europe. Of course, Labour did promise a referendum in their last manifesto.

    They said – "The new Constitutional Treaty ensures the new Europe can work effectively,
    and that Britain keeps control of key national interests like foreign policy, taxation, social security and defence.The Treaty sets out what the
    EU can do and what it cannot. It strengthens the voice of national parliaments and governments in EU affairs. It is a good treaty for Britain
    and for the new Europe.We will put it to the British people in a referendum and campaign whole-heartedly for a ‘Yes’ vote to keep Britain
    a leading nation in Europe."

    Fine words but of course Lisbon was not precisely the same treaty as the proposed constitutional treaty and so Brown reneged on his manifesto pledge. Of course, much of the content of Lisbon was very similar to the consitutional treaty. A comparitive study is at this link:

    http://www.openeurope.org.uk/research/comparative.pdf

  4. "As far as a War Powers Act is concerned, remember Parliament voted for Iraq – you may oppose that decision, think it tainted by lies and illegality, and so on, but the fact is that had a War Powers Act been in place in 2002, Parliament would still have voted for military action. In my view the new constitutional convention (and I think it is already one) that Parliament will vote on military action is as good in every practical sense as a War Powers Act."

    Except it's not a constitutional convention. Blair only gave the Commons a vote on Iraq because he had a massive majority, and the support of the Tories. It's not a convention, which is exactly why we DO need a war powers act.

  5. I think it is a convention, Alex. It's a brand new one, which is why it's not in textbooks, but I think it is one all the same.

    Blair gave Parliament a vote over Kosovo, too, as I recall – I think that was the first such debate before military action was ordered. He never gets credit for being the first PM to allow such votes, people's attitudes to Iraq making them sarcastic about anything he did. Yes, he knew he'd win the Kosovo vote, and was confident about the Iraq vote, but I have to say that dismissing the innovation because of the likely outcome of the votes suggests a concern with the outcome more than with the constitutional innovation. How are you proposing that a War Powers Act would prevent front bench agreement, or a massive majority?

    I say it's a convention because, although new, I think it's already politically impossible for any government to commit troops without holding such a vote, largely because of Iraq. I think Brown, Cameron and Clegg would all see themselves as bound to hold such a vote: and that's all you need to have a new convention.

  6. Interesting how all the arguments here against a written constitution base themselves on the need to ensure unfettered executive power, without any regard to those subjugated to that power. The unspoken majority whose dissatisfaction with the current system is growing by the month.

    It's very easy to blame it all on Brown et al., but I very much doubt it will change under the Tories. Vernon Bogdanor described Britain as being in a "Weimar" situation, and it's not difficult to see extremist parties profiting from the malaise.

    So why is all this relevant to a written constitution? Because the average person feels far removed from a system where those few elected by the minority act independently of the people and place themselves above the law. In a system with no duties and no obligations, it is, to quote Lord Hailsham, an elective dictatorship.

  7. does anyone think a written constitution would make the 'average person' feel less removed from the system? or make 'those few elected by the minority' any more accountable.
    it isn't a system with no duties and no obligations and a written constitution does not create duties or obligations, it merely expresses them in writing.

    and lord hailsham??? forgive my memory but wasn't he that guy hand in glove with margaret thatcher and forever moaning about denning? (yes i do oversimplify things)

  8. simply:

    1. A written constitution would be good, because it means the ordinary person can know exactly what their rights etc are, with all in one document.

    2. But an entrenched constitution I think is the focus of most people who want a written constitution.