Submissions made to the Commission on constitutional reform were not extensive, and most of those offered were focussed on a relatively small number of matters. Thus the role of bishops in the House of Lords attracted frequent mention, as did issues surrounding Church establishment. There was some ‘evidence’ about devolution, but this tended to emphasise the importance of treating the four nations within the UK State distinctively, rather than to assess in constitutional terms developments that have taken place or possible further changes.
It is probably inevitable that Christians and church groups should focus on special interests. In so doing churches replicate the pattern of other groups within society, for example universities or trades unions. But to pretend that the most significant question relating to parliamentary reform is whether or not a few bishops continue to have a presence in the second chamber is to illustrate a lack of genuine Christian engagement with mainstream public life. This presents those writing this report with something of a dilemma. We wish to represent accurately and to reflect upon the submissions received. But we would betray our calling (and our terms of reference) if we did not at least point to the larger agenda with which we believe Christian involvement that has integrity must battle.
It may be that there is greater agreement among Christians on marginal issues, such as bishops in the Lords or the desirability of retaining Establishment in some form, than there is on questions of greater significance. But agreement on these relatively marginal issues is far from complete, as submissions to the Commission have demonstrated. Certainly, on the larger agenda of reform those Christians who have views at all do disagree. This should not be seen as a matter of regret. No particular set of constitutional arrangements can carry a Christian imprimatur. Certain principles, for example about the dignity of individuals and the importance of power being made accountable, need to find expression. But this can be done in a great variety of ways, dependent on particular historical, geographical and cultural factors.
In evaluating the pressure for constitutional change it is necessary to begin by offering some brief comments on the nature of the constitutional settlement within the UK. The constitution is frequently described as ‘grown not made’. It is the product of history rather than of any a priori design. The lack of a clear break in the modern period (no successful revolution; no defeat in war) has obviated the need for an entirely fresh start to be made. The British constitution contains much that is written, including much that is expressed statutorily (though not codified), but also relies heavily on convention.
For some this is a matter of regret, for others a matter of celebration. Some emphasise the failure to consummate the democratic principle, and the need for fundamental constitutional reform to bring this about. Others emphasise the virtues of gradualism and pragmatism, and the success with which democratic freedoms have been nurtured within the context of a legitimised state, albeit one that remains in constitutional terms archaic.
Christians may quite reasonably take either view. We see no overriding principle that should direct Christians to one or other position. More important is to encourage Christians to be involved in the debate and to recognise the strength of arguments deployed on both sides. Whilst Christians will of course take sides, they may at the same time reasonably contribute a degree of intelligent scepticism about both fashionable nostrums of reform, and about the alleged superiority of the status quo. In this and in other matters it is helpful if Christians and churches in disagreement with each other are able to model a manner of constructive and principled disagreement rather than merely join ritualised party debate.
Pressure for constitutional reform has grown greatly in recent years. In some respects this has been pressure for particular constitutional reforms. But it has also been pressure for fundamental constitutional reform that addresses the unwritten or uncodified nature of the British constitution. Charter 88 was formed in order to ensure that the tercentenary celebrations of the Glorious Revolution of 1688 did not simply become a celebration of that event, but included recognition of the fact that what happened in the 17th century was incomplete in terms of establishing a modern constitution. A draft written constitution was produced for England. The main point of this was not the carrying through of particular changes, such as reform of the Lords, or electoral reform, or devolution, but the idea of formally enacting a constitution, and in so doing removing the formal sovereignty of the crown in parliament. This would have placed parliament and the crown under the constitution, with their roles and powers defined by the constitution. It is possible to conceive of a written/codified constitution that actually brought about very little change in the actual roles and powers of the various elements within our constitutional system. But if such a constitution was enacted these would be placed within a formal framework of law, which would be entrenched, meaning that it would not be capable of alteration by normal legal process, but would require amendment to the constitution. The manner in which this could take place would be spelt out in the constitution; for example it may require a two-thirds rather than a simple parliamentary majority, or a vote repeated in two successive parliaments, and/or ratification by means of a referendum. A codified constitution may well retain the constitutional monarchy, but certainly in Charter 88’s formulation it would have set the monarchy within the context of a democratic state, with power flowing from the people - defined as citizens not subjects - rather than from the Crown.
Whilst this may have certain theoretical and indeed practical attractions, it has not been a very serious part of the agenda of constitutional reform. The obstacles, both legal/technical and political/practical seem too great. And most people remain unconvinced about the alleged advantages. After all, written and formally codified constitutions that command great respect, such as that of the USA, contain many silences. Conventions develop and become authoritative. It is this lack of codification and the continued ultimate supremacy of the crown in parliament that allows the British constitution to be described as “whatever the government of the day can get away with” (Professor J. A. G. Griffith), or as a “back of the envelope” constitution (Professor Peter Hennessy). Professor Anthony King entitled his recent Hamlyn lectures “Does the UK still have a Constitution?”, arguing that although we had various descriptive rules, no principles give any clear rationale to these.
Pressure for fundamental reform arises in part from this perception of the inadequacy of the constitution in terms of the basic constitutional task of providing effective constraint on those who wield power. The Crown in Parliament retains sweeping power. Accountability for the exercise of this power is to parliament, which in effect has come to mean to the majority party in one House of Parliament. This is what Hailsham meant by elective dictatorship, and it worried him. The constraints on this power are political only. These may be demonstrated at times (the fall of the government in 1940; the fall of Thatcher in 1990), but when a party leader who is Prime Minister retains the support of his party, other constraints on the exercise of power may be very limited and accountability too can be threadbare. One may support the present arrangements as the only practical constitutional arrangements for the time being, while still also recognising the very real concern that they give rise to.
There are other reasons why pressure for particular constitutional changes has increased in recent years. The reliance within our constitutional arrangements on political constraints places a heavy emphasis on the party system and in particular the role of Her Majesty’s Loyal Opposition. The alternation of parties in office has been an important feature of this. But for eighteen years the electoral pendulum failed to swing, and this may again be happening.
Labour has chosen to describe the reforms it has been making as ‘modernisation’. Arguably they could be said to have not been driven by any basic principles. They were rather designed to provide some kind of remedy for particular grievances. No overall vision of the constitution gave shape to the Party’s proposals, and none has seriously emerged since it took office. In proceeding in such an ad hoc manner Labour has acted in a way that is entirely consistent with British constitutional development. Pragmatic, politically feasible adjustment has been the hallmark of past constitutional change too. Changes made to the House of Lords have not been driven by any desire to enhance the role of Parliament or to restore a more genuine bicameralism. Devolution was largely a response to political pressures in particular parts of the UK, and not part of any attempt genuinely to develop a federal structure or even to devolve political power in a meaningful way. Most of New Labour’s constitutional changes have been part of the usual processes of politics, pragmatic adjustments rather than principled redesign.
In summary therefore, the pressure for change has arisen from several factors, including the desire for fundamental change, exemplified by Charter 88; the accumulation of particular grievances about institutional arrangements; the necessary opportunism that Oppositions display; and influences arising from elsewhere in the world, notably in Britain’s case from continental Europe.
