A new Magna Carta? - Political and Constitutional Reform Contents

5 Cross-party co-operation


The need and potential for co-operation

128  The task of preparing and implementing a codified constitution is essentially different to any other form of official document or piece of legislation. It would be counter-productive to the whole enterprise if pushed through Parliament on the basis of a simple government majority. Insofar as all our constitutional arrangements - legal or conventional - ultimately depend upon the acquiescence of those who govern us, a party taking office who had opposed the new code would be most likely to change or repeal it causing instability and uncertainty.

129  Furthermore, whether the form of codification was a non-legal Code or a legal instrument, if the initiative or any draft document prepared were to be actively resisted by the opposition parties, there is ample scope in the parliamentary process to protract its passage through either or both Houses, raising serious concerns about the expenditure of time in comparison to pressing social and economic issues. If a referendum were held in circumstances of political division, it would be self-defeating to its wider national purpose of serving as a means of binding and unifying the country.

130  Establishing a common ground between the political parties on codifying the constitution, in terms of both content and a framework for its preparation, presents the greatest challenge to such an initiative becoming a practical proposition. In a parliamentary system that has a more pronounced process of opposition than almost any other in the world, any proposal requiring cross-party support faces formidable difficulties.

131  In reality however, there is a great deal of consensus on the fundamentals and basic elements of the constitution. There may be some significant differences in terms of background ideology, values and priorities about the constitution embedded within Conservatism and the Left,[966] but many proposals for constitutional change are cross-party in nature, carrying varying degrees of members' support or dissent within Conservative, Liberal Democrat and Labour parties.

132  Even on questions of substantive constitutional reform, such as elections to the House of Lords or a Bill of Rights, there are supporters and opponents to be found in each of the parties, and on some issues there are All Party Parliamentary Groups fostering cross-party dialogue such as the ones at present on the Constitution and on the United Kingdom. For electoral purposes and the credibility of maintaining a united front, the great majority of party members will naturally support their leaders' policies in public; but one should not mistakenly think the policy or attitude of a party's front bench is necessarily reflected or agreed with wholeheartedly by individual MPs, peers and party members.

133  Political attitudes to constitutional affairs evolve over a period of time, in response to events and other political changes taking place. For most of the past hundred years Labour barely concerned itself with the constitution, in the belief that it was largely a super-structural irrelevancy to securing social justice and the implementation of the party's economic and nationalisation programme.[967] Yet this attitude was transformed under Neil Kinnock, John Smith and Tony Blair, leading to the party's wide-ranging constitutional reform programme on taking office in 1997. Meanwhile Conservative opinion has radically changed on a raft of constitutional questions, ranging from Scotttish and Welsh devolution, democratising the House of Lords, relations with Europe, and citizenship rights such as gay marriage.

134  All this suggests that there is certainly the potential for cross-party talks on a codified constitution. As already described, this proposal has steadily gathered momentum across the parties since the Conservatives' Lord Hailsham's public call for a written constitution in 1976. It has had consistent support from Liberal Democrats in their policy programmes. The Labour government began a process on a written constitution whilst in government during 2009-10.[968] The idea of codifying the constitution is essentially a pragmatic one, not one born of socialist, social democratic, liberal or conservative thought. For some it might be seen as a conservative consolidation of the best elements of the UK state; for others it might be viewed as a progressive modernising measure rendering the constitution more accessible to the general public.

Formal conferences and other institutional devices

135  Inter-party conferences were widely used before 1922 as a method to resolve problems which could not be dealt with by the normal machinery of party politics. The first such conference was on the disestablishment of the Irish church in 1869, and the second on the electoral reform and redistribution proposals of 1884. Both of these conferences came about as a result of disagreement between the House of Commons and the House of Lords, whose statutory powers were, at that time, in theory unlimited. Both yielded agreement on legislation, so preventing a constitutional crisis. The next four conferences - on the abortive education bill of 1906, on the constitution in 1910, on Irish Home Rule in 1914, and on conscription in 1915, - did not succeed in resolving problems.

136  In 1916, a conference was held at Buckingham Palace, following the resignation of Asquith, to ascertain who should be appointed Prime Minister, which resulted in the appointment of Lloyd George, after it was ascertained that Asquith would not serve under the leader of the Conservative Party, Bonar Law. In 1931, a similar conference was held at Buckingham Palace to decide upon a new government following the failure of Ramsay MacDonald's minority Labour government to agree upon an economy package. The conference decided upon an emergency National Government under the leadership of MacDonald, and laid down the conditions under which the government would operate.

137  There have been a number of inter-party conferences on reform of the House of Lords. In 1917-18, an inter-party Conference, chaired by Lord Bryce, produced compromise proposals, but no action was taken upon them. In 1948, a party leaders conference was held to seek a consensus on Lords reform. It produced an Agreed Statement, which came near to agreement on the composition of a reformed House, but it could not agree on powers. The conference revealed a difference in viewpoint between the Conservatives, who believed that the Lords should enjoy a real delaying power to enable public opinion to crystallise, and Labour, who regarded the Lords as purely a revising chamber, and believed that a delaying power could too easily be used to thwart the government of the day. An inter-party conference on reform of the Lords during 1967 and 1968, agreed on the role of cross-benchers and on a delaying power of six months, but could not agree on the categories and qualifications for membership. The conference broke up after Conservative peers voted down a Southern Rhodesia sanctions order in 1968, and the government then proceeded to legislate without all-party agreement. But the reform bill met with such opposition from back-benchers of all parties who engaged in a determined filibuster that they had to be dropped in 1969.

138  Inter-party talks of a less formal nature were initiated on devolution in 1977, following the failure to achieve a guillotine resolution in the House of Commons on the Scotland and Wales bill in an attempt to break the deadlock. However no agreement could be reached and the Labour government with the support of the Liberals proceeded to new legislation on devolution without all-party agreement.

139  The use of Royal Commissions, Speakers' Conferences, select committees, and other constitutional reform bodies of inquiry, may be useful to clarify areas of likely agreement and disagreement, or to produce a for consideration, but is of limited practical value for actually securing inter-party agreement. This is because the memberships of such bodies, whilst usually containing members drawn from across the political parties, have no power to bind their party leaders.

140  Thus Royal Commissions[969] have generally contained at least one member drawn from each of the main political parties to represent their viewpoint, though operating on an independent-minded basis, rather than representing any agreed position of the party to which they belonged. In 1999 for example the Royal Commission on Reform of the House of Lords included Lord Wakeham and Lord Hurd from the Conservative Party, and Gerald Kaufman MP and Baroness Dean from the Labour Party. The Liberal Democrats nominated Professor Dawn Oliver who had served as an adviser to the party on constitutional affairs. The same is true of Speakers' Conferences, which in the most recent case convened in 2008 on issues of parliamentary representation contained ten Labour MPs, four Conservative MPs, two Liberal Democrats, and one Democratic Unionist.

Inter-party talks as part of a Constitutional Convention

141  The innovation of a non-governmental Constitutional Convention, established by persons and bodies seeking to gather wide-ranging support and agreement for a scheme of Scottish devolution, has been described above, and is the subject of a separate case study in the Appendix.[970] This was attended by representatives of the parties sympathetic to devolution - Labour and the Liberal Democrats - but not by the Conservatives who at that time were opposed to devolution, nor by the Scottish nationalists who were committed to independence. As is detailed below, the Convention also included representatives of civil society in Scotland. A significant outcome of the Convention was agreement that the Scottish Parliament should be elected by proportional representation, a concession on the part of the Labour Party during the negotiations. The Convention proved successful both in terms of laying the scheme for devolution that formed the basis of the Scotland Act 1998 (indeed when the legislation was debated in Parliament, amendments to it were criticised on grounds that they departed from the scheme agreed by the Convention which had, so it was argued, achieved a consensus in Scotland) and for pre-empting parliamentary hostility to devolution such as had killed earlier proposals in the 1970s.[971]

Informal methods: the pre-IPSA talks

142  There have been some recent episodes of cross-party talks on the need for reform, held in circumstances of sensational public controversy creating a sense of urgency for some action to be taken in response. One of these arose against the background of the furore created by the parliamentary expenses scandal in 2009. The daily front page embarrassing revelations in the Telegraph newspaper about how MPs had been spending their allowances for private purposes, which subsequently even led to some prosecutions, had created an atmosphere bordering on hysteria at Westminster, accompanied by outrage and damage in public confidence in the political class generally in media and public opinion, especially at a time of financial crisis and austerity.

143  The Speaker, Michael Martin, convened a meeting of party leaders on his last day in office, to agree an interim regime for MPs' expenses and how to go forward. All the party leaders attended (Prime Minister Gordon Brown, David Cameron, and Nick Clegg), together with the leaders of the minor parties who had been invited. The paper considered was in the name of the Speaker and had been prepared by parliamentary official. A separate paper by Prime Minister was not discussed in detail. The discussion led to an agreed plan of action, including the principle of establishing an external body supervise and regulate the operation of expenses in the future. This was a highly significant constitutional step, for Parliament has traditionally been jealous of, and resistant to, any external regulation of its internal affairs, even by the courts.[972]

144  The government then took the lead in preparing further cross-party talks to agree the details of the permanent new body to be set up by statute. These meetings of about 30 people in total were conducted at Leader of the House level, with Jack Straw, Justice Secretary, leading and supported by a team of Ministry of Justice officials. Alan Duncan, then shadow leader of the House, represented the Opposition, with other important participants including Sir George Young, the chair of the Privileges Committee, and representatives of all the parties, together with the party leaders in the House of Lords. Six meetings were held in a large ministerial conference room at the House of Commons, directly beneath the Chamber.

145  In practice, Jack Straw led in the meetings, sharing with the others successive drafts of the Bill - itself an unusual development. Jack Straw, who was supported by officials from the Constitutional Secretariat in his department. His personal diplomatic abilities combined with a frank and open style of handling the debate and discussion made a significant difference. Another factor promoting the success of the talks was the presence of the minor parties, who had the effect of defusing some of the tension that built up on occasion between the three main parties, especially the contributions made by Elfyn Llwd for Plaid Cymru. This was commented upon in the parliamentary debates on the Bill later on, which became the Parliamentary Standards Act 2009 setting up the statutory Independent Parliamentary Standards Authority (IPSA).

Informal methods: the post-Leveson talks

146  Another recent episode of all-party talks on reform came in 2012-13 against a background of sensational exposés of gross press misconduct into people's private lives, including telephone hacking, leading to the closure of the News of the World newspaper, some prosecutions of journalists and senior managers in the press, and sensational revelations in public headings before the House of Commons Culture Media and Sport Committee and a public inquiry under the chairmanship of Lord Justice Leveson set up to take evidence and bring forward recommendations for regulatory reform. The general sense of outrage in public opinion and among politicians created a political imperative and sense of urgency that concrete reform had to follow the publication of the Leveson report in November 2012.

147  As was the case in the pre-IPSA talks in 2009, initially the three party leaders (Prime Minister David Cameron, Ed Miliband, and Nick Clegg) met together on the subject, immediately after the House of Commons debate on the Leveson Report on 29th November. The matter was then taken forward by the Culture, Media and Sports Secretary, Maria Miller, who met separately with a group of press victims and a group of press editors within the next seven days, before convening a meeting with shadow spokesmen from the other two main parties, Harriet Harman for Labour and Lord Wallace for the Liberal Democrats. A key stumbling block between the parties was whether the new form of press regulation should be statutory or not, with Labour pressing for an Act of Parliament as recommended by Lord Justice Leveson, the Conservatives preferring a voluntary scheme set out in a Royal Charter, and the Liberal Democrats open-minded on the issue.

148  At least six further meetings of all the party representatives then took place over the next three months. Oliver Letwin, a minister in the Cabinet Office and the Prime Minister's principal policy adviser, emerged as the key broker in the cross-party negotiations, presenting draft papers for discussion with Justice spokesmen, including Lord Falconer (the former Lord Chancellor and Justice Secretary) on the Labour side.

149  Further meetings between the three main party leaders took place at two points when the negotiations stalled, on 19th December 2012 and 13th March 2013. The last of these two meetings ended in deadlock between Cameron and Miliband, resulting in the Prime Minister announcing he would proceed without Opposition support, followed by frenetic discussions with Nick Clegg and the Liberal Democrats. Mr Clegg then played a key role in returning to talks with Ed Miliband on 19th March, settling an agreed compromise that included a statutory right to exemplary damages in actions again publishers. The outcome was a Royal Charter dealing with enforcement of a new code of practice governing the press, and the matter of exemplary damages being dealt with by way of amendments to the Crime and Courts Bill then passing through Parliament.

150  Factors that contributed to the successful agreement reached as a result of the inter-talks included the initial impetus provided by the Leveson report; the influence of interested parties particularly the press and "Hacked Off" campaign representing victims of press intrusion; a tight schedule of timetabling and deadlines being kept to; the parliamentary arithmetic, meaning the Liberal Democrats as coalition partners had more leverage than had they been in opposition, and conversely the Labour opposition had limited leverage apart from exerting pressure through the media and exposing divisions of opinion in the coalition (on which there had been no discussion at the time of the coalition agreement in May 2010) and through parliamentary stalling tactics; and "brinkmanship", meaning that all sides recognised that some settled reform had to be put in place as a matter of urgency before the end of the end of the parliamentary session in May 2013.

Gordon Brown's initiative on a written constitution

151  An attempt was made to initiate informal inter-party talks on a written constitution by the last Labour government under Gordon Brown's premiership in February 2010. In a speech to the Royal Society of Arts,[973] he said, "the question of a written constitution [is] an issue on which I hope all parties can work together in a spirit of partnership and patriotism". He went onto say that he was convening an all-party group to begin the process of working towards codifying the constitution:

"If we are to go ahead with a written constitution we clearly have to debate also what aspects of law and relationships between each part of the state and between the state and the citizen should be deemed 'constitutional'. I can therefore also announce today that a group will be set up to identify those principles and I hereby issue an invitation to all parties to be represented on this group. And if we are to decide to have a written constitution the time for its completion should be the 800th anniversary of the signing of the Magna Carta in Runnymede in 1215."

152  However, there is no record of any such group or inter-party talks taking place, and it seems likely that both David Cameron or Nick Clegg were unwilling to participate in any such initiative. A 10 Downing Street Policy Unit seminar had been held on the subject earlier in December 2009 but one whose membership consisted of selected constitutional specialists in the subject rather than politicians.

153  Given the proximity of the forthcoming general election in less than four months' time, it would have been surprising if David Cameron, then Leader of the Conservative Opposition, had wished to enter into any form of collaboration with a government he was intent on attacking generally. In the case of the Liberal Democrat leadership, it became clear during the five days in May during which time the three main party leaders were negotiating on the formation of a new government from the hung Parliament, that Nick Clegg was unwilling to co-operate with Labour whilst Gordon Brown remained its leader.[974] It seems therefore that politics and personalities played the greater part in scuppering Gordon Brown's hopes for inter-party talks on a codified constitution in 2010.

The Cook-Maclennan agreement today

154  The failure of Labour-Liberal Democrat talks in 2010 may be contrasted with the successful nature and outcome of the 1996-97 inter-party negotiations and agreement between those two parties. In summer 1996 the then Labour Leader in opposition, Tony Blair, and the Liberal Democrat leader, Paddy Ashdown, set up a Joint Consultative Committee on Constitutional Reform. This was co-chaired by two senior party members, Robin Cook for Labour, and Robert Maclennan for the Liberal Democrats. The personal chemistry between both Blair and Ashdown, and between Cook and Maclennan, is known to have been particularly good.[975] The background to the talks was favourable too, after what they both regarded as the monolithic tendencies of the Thatcher administration and eighteen years of Conservative rule, fostering unity in opposition and a preparedness to work together to strengthen the constitution.

155  The outcome of the Cook-Maclennan Agreement in 1997 was that it formed an agreed agenda for constitutional reform that the two parties endorsed and supported, leading to eighty per cent being subsequently enacted. It included the widest-ranging programme of reform since the nineteenth century, including devolution, the Human Rights Act, the Freedom of Information Act, an elected London mayor, removal of the great majority of hereditary peers, putting some prerogative powers on a statutory footing, and creating new independent commissions on human rights and electoral administration. The successful nature of the 1996-97 inter-party talks also translated into a special Cabinet Committee being set up by Tony Blair during 1997-2001 with terms of reference "to consider policy issues of joint interest to the government and the Liberal Democrats".

156  Codifying the constitution was viewed by Cook and Maclennan as being of less magnitude than their reform programme in terms of substance, and was principally a matter of form to be considered later on. As Cook commented in 2005,

"We have a constitution but it is spread across many Acts of Parliament. It seems to be that there is nothing wrong and a lot to be gained by bringing them together in one coherent text. But in itself that will not change anything about the constitution. It may, however, make it more accessible and more readily understood."[976]

157  It seems that, whilst a written constitution has risen as a policy objective within the Labour Party, it has dropped down the list of priorities for the Liberal Democrat leadership, despite its prominence in their policy documents and manifestos in the past. It was not an item negotiated for during the coalition talks in May 2010, in which the Liberal Democrat negotiators concentrated in political reform matters on elections to the House of Lords, a referendum on the Alternative Vote, and fixed-term Parliaments.

158  Currently therefore, Nick Clegg as Deputy Prime Minister has not raised this matter with his Conservative partners or pressed for any sort of initiative, however preliminary in nature, believing there are more important priorities. Thus in evidence to the House of Commons Political and Constitutional Reform Committee, Nick Clegg said,

"I believe in a written constitution. There are general differences between the parties, but what I would be very reluctant to do is to allow a debate about a written constitution to delay or hinder progress on a whole bunch of things that we can just get on with... If you said, 'Let's scoop it all together into some sort of great big jumbo exercise called the new written constitution', it might feel neat, but it might also be fearfully slow."[977]

159  In retrospect, this may appear a lost opportunity to supporters of a codified constitution, for the Conservative leadership was open to negotiation on Liberal Democrat policies on the constitution as a set off for accepting other policies of the Coalition such as University fees. In the event, among the constitutional reform items they selected as a priority, electoral reform and elections to the House of Lords were prominent failures, and only fixed term Parliaments were introduced, which in any event was principally of benefit to the duration of the Conservative Party in office.

The role of the Head of State

160  During early inter-party conferences, a crucial role was sometimes played by the monarch. It was indeed at Queen Victoria's initiative that inter-party talks were held to resolve differences between Commons and Lords on Irish Church disestablishment. In 1914, George V urged the Prime Minister to call a conference of party leaders to resolve the problems involved in Irish Home Rule. Further Buckingham Palace conferences were held in 1915 - on conscription - in 1916 - to discover a successor to Asquith - and in 1931, to secure agreement on a new government.

161  It would be highly unlikely today that Queen Elizabeth would wish to play an active role in resolving political differences. Following the 2010 election, for example, the Queen deliberately remained at Windsor Castle while the coalition negotiations took place, so that she could not be accused of seeking to influence the outcome. Her Private Secretary, Sir Christopher Geidt, however, did occupy a temporary office at the Cabinet Office during the inter-party negotiations, to be kept closely informed of developments.

162  Wisely or otherwise, the next in line to the throne has indicated he intends to perform a more proactive role than his mother. Prince Charles, our future monarch, has recently let it be known through his biographer and friend Jonathan Dimbleby, that he might be prepared to use his "convening power" to try to help facilitate general agreement where that might be thought useful.[978] Insofar as the Crown has a deep institutional interest in the constitution and its formalities, Prince Charles might well be extremely interested in any project to codify the constitution.

163   Some clarification about such a role is important, however. The better historical precedents for a monarch hosting inter-party conferences, such as the Buckingham Palace conference on the Home Rule Bill in 1914 proposed by the then Prime Minister Herbert Asquith, are as a means of facilitating discussion, not to provide a platform for the monarch to play a proactive role in determining the outcome.[979] As Asquith had rightly stated to the King earlier in January 1910 during the storm over the Parliament Bill and future of the House of Lords,

"It is not the function of a Constitutional Sovereign to act as arbiter or mediator between rival parties and policies; still less, to take advice from the leaders of both sides, with a view to forming a conclusion of his own'.[980]

Lessons for the process of codifying the constitution

164  From past experience, it would seem that the following elements, or at least some of them together, would be required to produce a successful outcome of any initiative to codify the constitution.

165  A prior disposition of at least two, and preferably three, of the three main political party leaderships to the central aim and purpose of the reform proposal is necessary. To take some early examples, in 1869 over Irish Church disestablishment, in 1884-5 over the franchise and redistribution bills, and in 1916-7 over franchise reform, that pre-disposition was present and produced a successful outcome. However, in 1906 over the Education bill, in 1914 over Irish Home Rule, in 1929-30 over electoral reform, and in the various inter-party talks on Lords reform, agreement could not be reached because the predisposition to agree was not present. In the very recent examples of the pre-IPSA and post-Leveson inter-party talks, all parties were predisposed to the need for more effective and independent press regulation.

166  The context and political atmosphere surround the cross-party talks must carry some sense of urgency or imperative to reach a conclusion and for action to follow. This has already been considered in the context of the initiative for reform, and what catalysts might arise, such as a traumatic event affecting the political structure such as Scottish independence, a crisis in the monarchy, or departure from the European Union, or a crisis of public confidence in the political class brought on by a catastrophic financial collapse in the country, and/or a concerted public and media campaign of sufficient strength as to make it an electoral issue.

167  Inter-party talks and meetings of a relatively informal nature are more likely to produce a successful outcome, with ad hoc arrangements on personnel, agenda, timing and location of subsequent meetings to suit the stage at which negotiations had reached. The more formal processes adopted in the conferences held in the late 19th and early 20th centuries are less well adapted to modern conditions, particularly the more tribal nature of party politics today and the glare of modern media posing problems for the confidentiality of proceedings. For settling the general principles of a reform, a small meeting, preferably between the respective party leaders seems most effective. Subsequent details can be negotiated and agreed upon by the relevant Secretary of State and his or her shadow counterpart, with the support of officials as necessary for technical advice and information.

168  The personalities and personal chemistry between the party leaders and respective party negotiators will be important to a successful outcome, together with their diplomatic and management skills and a genuine willingness to co-operate. In other words, issues of human conduct are at least, if not more, important than those of institutional structure for the cross-party talks. There is evidence that the presence of minor parties at the negotiating table has a mollifying effect on any in-grained adversarial default approach taken by the three major political parties.

966   See Blackburn, Case Studies, W and X. Back

967   Time spent on its attempt at Lords reform in the 1960s (which failed) was justified on tactical rather than ideological grounds, as a device to remove the second chamber's in-built Conservative majority.  Back

968   See below. Back

969   See Blackburn, Case Studies, B. Back

970   See Blackburn, Case Studies, D. Back

971   See also Kenyon Wright, The People Say Yes: The Making of Scotland's Parliament (1997). Rev. Kenyon Wright was Chair of the Convention. Back

972   See Halsbury's Laws of England, 5th ed. Volume 78: Parliament (2010), pp.862f. Back

973   "Towards a New Politics", 2 February 2010. Back

974   See Robert Blackburn, "The 2010 General Election Outcome and Formation of the Conservative-Liberal Democrat Coalition Government", Public Law (2011), pp.30-55. Back

975   This is made clear in subsequent diaries and memoirs: see Paddy Ashdown, The Ashdown Diaries, Volume 1: 1988-1997 (2000); Robin Cook, The Point of Departure (2003); Tony Blair, A Journey (2010). Back

976   Looking Back, Looking Forward: The Cook-Maclennan Agreement, Eight Years On (New Politics Network, 2005), p.11. Back

977   Oral evidence session, 19 April 2012, Q.205. Back

978   Jonathan Dimbleby, 'Prince Charles: Ready for Active Service', The Sunday Times, 16 November 2008. Back

979   See Harold Nicolson, King George V: His Life and Reign (1952), 242-243. Back

980   Quoted in Roy Jenkins, Mr Balfour's Poodle (1954), 133. Back

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Prepared 10 July 2014