24 November 2005  ‘Constitutional Affairs Today’ I am very grateful to you for inviting me here this evening to talk to you about constitutional affairs in the United Kingdom today. What I intend to discuss with you are the ways in which I think our constitution has been damaged in recent years, and some of the approaches we need to consider if it is to be strengthened. My objective at all times in approaching constitutional affairs is simply stated – to enhance stability, improve performance and increase the accountability of our major institutions to the people they are there to serve – namely, the peoples of the United Kingdom. Until fairly recently, for most politicians constitutional affairs hardly figured on the political radar screen at all. For all its oddities and imperfections, the British constitution seemed both strong and settled. Advocates of reform were often dismissed as faddists – be it the ultra-left seeking the total abolition of the monarchy and the House of Lords, or the Liberals through their advocacy of Parliamentary reform and proportional representation. Yet this is not an entirely accurate picture. While it is true that constitutional issues have not featured strongly at any General Election since December 1910 – when the country was locked in debate over the powers of the House of Lords – they have never been entirely dormant. From the 1960s Scottish and Welsh devolution came increasingly to dominate the political debate in those parts of the United Kingdom. And it was, of course, the failure to carry a more modest form of devolution than we have today that led directly to the downfall of the Callaghan Government and the election that brought Mrs Thatcher to power in 1979. In Northern Ireland – though very different circumstances apply there to the rest of the United Kingdom – every election, even at local government level, is a referendum on the constitution.  In fact, by the late 1960s, constitutional matters were high enough on the political agenda for the appointment of a Royal Commission, the Kilbrandon Commission, that reported in 1973. That is, of course, also the year that we joined what was then known as the Common Market – our relationship with which has been known to cause the occasional ripple of debate within the Conservative Party. For all this, however, constitutional reform rarely featured during the 18-years of Conservative Government from 1979 to 1997 – though that isn’t to say there weren’t some important changes to the way in which we are governed.  The establishment of Departmental Select Committees has improved the scrutiny of legislation and the accountability of the Executive to Parliament – though I believe there are ways in which this could now be taken further.  The Scottish Grand Committee was given significantly greater powers – including the ability to question the Prime Minister in Scotland itself.  And, I would argue, through a combination of trade union reforms and the facing down of the miners’ strike in 1985, that Parliament regained an authority to govern that at times in the 1970s it seemed in danger of losing forever. The Anglo-Irish Agreement of 1985 represented something of a constitutional novelty for what is fundamentally a unionist party, while the Single European Act of 1986 had significant implications for domestic law. Overall, though, it is true to say that both the Thatcher and Major Governments had little interest in radical constitutional change – and for good reason. We were elected to deal with rather more pressing problems – not least to reverse decades of economic decline and restore Britain’s standing in the world. And, while Conservatives never went so far as to echo the Duke of Wellington on the eve of the Great Reform Act in believing that the constitution was the embodiment of ‘all that is perfect’, we did believe that our institutions generally worked well.  In such circumstances, radical upheaval has never been part of the Conservative tradition. Pragmatic and piecemeal reform has always been more to our taste. Not so Mr Blair. The Prime Minister often seems to revel in allowing himself to be portrayed as a kind of Conservative in Labour clothing – a Tory in drag. Indeed, it is a criticism often thrown at him by his detractors on the left.  It is, of course, not a description of Mr Blair that I – as an actual Conservative – remotely accept. For all the Conservative sounding rhetoric designed to reassure what is loosely termed ‘middle Britain’, Mr Blair is undoubtedly a Labour Prime Minister leading a Labour Government. And one only has to look at his record on constitutional affairs to appreciate that fact. Mr Blair came to power offering the, as he put it, ‘most extensive package of constitutional reform ever’. And in many respects he has certainly been true to his word. The constitutional landscape of Britain is now vastly altered from what it was in 1997. To take just a few examples: - We have the Scottish Parliament and the Welsh Assembly, bringing an end to the relationship between England and Scotland that has existed since the Union of 1707 and introducing PR voting - Most of the hereditary peers have been ejected from the House of Lords. - The role of the House of Commons in holding the Government to account has been weakened. - The 1,400 year-old office of Lord Chancellor has been radically altered with the current incumbent, as Secretary of State for Constitutional Affairs, much more directly involved in politics than his predecessors. - Once its new building is ready, at the taxpayers’ expense, the Supreme Court will take on the role – from outside Parliament – currently exercised by the Law Lords. - The Human Rights Act has incorporated the ECHR into domestic law with obvious and far reaching consequences for our legal system. - The Freedom of Information Act is bringing about significant changes to the way in which public bodies throughout the United Kingdom go about their business. I object profoundly to some of these – such as the way in which Parliament has been treated by Labour. But it is not any part of my case against Mr Blair that all of his constitutional reforms are necessarily bad.  That would be absurd.  For example, while it is true that the Conservative Party voted against the specific proposals for Scottish devolution, nobody today would argue against the principle of devolving powers to the constituent parts of the United Kingdom. And, just for the record, the Conservative Party not only fully accepts the Scottish Parliament as representing the settled democratic will of the Scottish people; we are also working hard to make it a success for the Scottish people. No – the main charge against Mr Blair is that all too often his reforms have lacked coherence and respect for tradition. They are botched. They have all too often been the product of little thought, inadequate consultation and no serious attempt to build consensus – something that Conservatives believe is not only desirable but the necessary basis for lasting changes that command widespread acceptance. Two examples illustrate this. First, take the House of Lords.  Remember Mr Blair’s pledge in 1997. He told us that he wanted to make the Lords more ‘representative and democratic’. True, all but 92 of the hereditary peers have gone. But since then we have had two more manifestos, two White Papers, a Royal Commission, a Joint Committee of both Houses followed by free votes in the Lords and Commons on different options for reform and a reform Bill promised in the 2003 Queen’s Speech that had to be pulled before it was even published. And the result?  - Eight years on we have a House of Lords in which 45 per cent of its members were appointed by Mr Blair – including a massive 70 per cent of Labour peers. King Henry VIII himself would have envied such patronage. - He has created 344 peers in his 8 ½ years in office, compared with 216 by Mrs Thatcher in 11 ½. - He has created peers at a rate of 41 per year – a record unequalled since life peerages were introduced in 1958.  So it’s hardly surprising with a record like that, when he had the opportunity to vote on the Lords’ composition in February 2003, Mr Blair completely reversed two manifesto commitments – and the personal programme on which he stood for the leadership of the Labour Party – and backed a totally appointed Second Chamber.  Not for nothing did the late Robin Cook accuse him of moving from ‘the 15th century principle of heredity, to the 18th century principle of patronage’. We haven’t seen anything like it since the days of the Younger Pitt. So much for a more democratic House of Lords.  Today there is deadlock. And all because Mr Blair insisted on embarking on stage one of his reforms – the removal of hereditary peers – without any idea of what stage two would look like. How much more satisfactory the situation would now be for everyone had he heeded the wise advice of my colleague Lord Strathclyde and gone for one all-embracing reform – that was agreed by all sides. My second example is the now infamous episode that led to the creation of the new Department for Constitutional Affairs in June 2003, and the package of reforms contained in what has become the Constitutional Reform Act. It is hard to imagine less suitable circumstances, and worse motives, for introducing sweeping changes that will determine the character of our constitution and legal system for generations. Mr Blair had spent that day back in 2003 seeking to reshuffle his Cabinet. But when things started to go badly wrong in the afternoon, precipitated by the resignation of Alan Milburn, he needed to rescue the news agenda. Completely out of the blue, a press release appeared from Downing Street shortly before the 6pm news announcing the abolition of the office Lord Chancellor, a Judicial Appointments Commission and the new Supreme Court.  There was no prior consultation with anyone. The Lord Chief Justice of England and Wales – central to the whole announcement – was told a matter of eight minutes before the press release was issued. Parliament then spent months considering legislation that was both sloppy– the special House of Lords Select Committee made over 400 amendments to the less contentious parts of the Bill – and, in the view of my Party, totally unnecessary. At times it became absurd – such as the argument put forward by the Lord Chancellor that the changes were required because our existing arrangements were so robust in guaranteeing the independence, quality and integrity of the judiciary that now was the right time to change them. Or the equally bizarre proposition put forward was that the separation of powers between the judiciary and the executive requires the removal of the Law Lords from Parliament. It was a classic case of tackling a problem that does not exist, and under our constitutional arrangements could not have existed.  Nobody, including Lord Falconer himself, has ever argued that the Law Lords carry out their functions with anything but the utmost impartiality, independence and integrity – or that this is somehow compromised by their sitting in the Palace of Westminster. Quite the opposite in fact. Now, I don’t for one minute believe that the new Supreme Court will perform with any greater of lesser degree of effectiveness and independence from the executive. My argument is that it remains a costly and totally unnecessary extravagance. As for the Lord Chancellor we now have a situation whereby the historic guardian of judicial independence in the Cabinet, aloof from daily politics, towards the end of his career and bearing down with the full authority of his ancient office, could in future be a relatively junior member of the cabinet, sitting in the Commons, unable to stand up to more senior colleagues. That is not a sensible move. Taking on the likes of David Blunkett and Charles Clarke, when they are seeking to trample over people’s liberties, requires stature and authority – not the protestations of an ambitious politician on the make. The more we debated it in Parliament, the more I came to the conclusion that the Constitutional Reform Act only makes sense when you remember its primary purpose. That was not to provide the United Kingdom with a constitution for the 21st century – but to get the Prime Minister out of a short term fix by grabbing a headline on the 6pm news. The Constitutional Reform Act was, therefore, a classic example of how not to approach constitutional reform, or to make law. It highlighted one of Mr Blair’s least attractive traits – and one which again nails the myth that he is a closet Conservative. Because the reality is that Mr Blair can hardly see an institution that has stood the test of time – be it legal, political or indeed an historic Scottish regiment of the British Army – without wishing to fiddle with it or abolish it. Nothing could contrast more starkly with the Conservative approach to constitutional affairs.  Rather than dismiss things because they are old, and embark on change for it own sake, we incline to the view that the fact that something has survived over generations might indicate that there is some good in it. We have always preferred to view things as they are, rather than embrace abstract blueprints for change.  None of this is to say that Conservatives are die-hard defenders of the status quo, determined to resist all constitutional reform, as our opponents often like to caricature us. In reality, Conservative Governments have been responsible for some of the most far-reaching constitutional reforms of the past 150 years. It was Conservative Governments that: - extended the franchise to the working man in the 1867 Reform Act; - granted universal votes to women in 1928; - introduced life peerages in 1958 and the right to disclaim peerages in 1963; and  - created the current Commons Select Committee system to which I referred earlier. I believe that the Conservative approach to constitutional reform is basically grounded in moderation, common sense and practicality. For us, evolutionary change is more likely to provide stability than radical, or revolutionary, upheaval. Consensus is preferable to partisan strife. And, we understand in a way that Labour and the Liberal never quite have, that institutions are far easier to destroy than they are to build from scratch. Conservatives have always been mindful of Edmund Burke’s words about society being a contract between those who are dead, those who are living and those who are yet to be born. It follows naturally from this that the constitution is not the property of one person – though Mr Blair often acts as if it is – or generation, to do with as they please. Rather, it is something to be held in trust for all generations. In fact, it was Burke who summed up beautifully our approach to reform when he said that: ‘A disposition to preserve, and an ability to improve, taken together, would be my standard of a statesman’. How does this apply to the Conservative Party today, first as we consider the latest constitutional proposals to come from the Government and, under a new leader, begin to think about the policies that we would implement should we win the next election? Labour’s current programme, certainly in this session of Parliament, is dominated by legal reforms.  Some of these, such as the Compensation Bill – designed to clarify the law on negligence and regulate so-called ‘claims farmers’ we broadly welcome. I accept that a US-style ‘compensation culture’ might be somewhat exaggerated. But I do think we need a better balance between protecting the rights of those who have a legitimate claim to compensation in cases of negligence, while guarding against a culture which encourages people to make frivolous or vexatious claims in the belief that it will make them money.  We also welcome the Criminal Defence Service Bill. Having opposed Labour in abolishing means testing for criminal legal aid when it was before Parliament in 1999 we can hardly oppose the Government’s u-turn in reintroducing it now. This Bill, of course, seeks to do something about the complete mess that the legal aid system overall is now in under Labour. Elsewhere, on the White Paper to reform of legal services, following the Clementi Review, we are currently finalising our position, though we do have concerns about the so-called ‘Tesco Law’ that will allow commercial companies not regulated by the Law Society to buy up solicitors firms and other providers of legal services. Where we absolutely oppose the Government, though, is in its attempts to abolish jury trials for complex fraud cases. We believe that the right to trial by jury and the presumption of innocence are rooted in common sense and form the bedrock of the criminal justice system in our country. In our view, by deciding to end the automatic right to jury trial in fraud cases the Government is embarking on what could be a very dangerous and slippery slope. We believe that a better way forward would be to have specialist juries for the most complex cases. So if and when the Government brings the Order before Parliament to give effect to this part of the 2003 Criminal Justice Act, we will oppose it in both Houses and seek a better way forward.. Looking further ahead, we will also resist the Government’s plans to limit the length of time that Bills can spend in the House of Lords to no more than 60 sitting days. As I have said before, this is simply a means of disabling the House of Lords – the only chamber of Parliament these days that is able to stand up to Mr Blair and ensure that Government legislation is properly debated and examined. My party will continue to stand steadfast for the ability of Parliament as a whole to hold Mr Blair to account, and to stand up for the traditional liberties of the British people that he seeks to erode – such as when he proposes to lock people up for 90 days without charging them. Finally, what about the priority areas for the Conservative Party? Obviously at this stage of a Parliament, and with the election of a new leader only a matter of days away, I cannot go into anything very specific about actual policies. But it is clear to me that Labour’s reform package means that we can no longer afford to ignore or sideline constitutional issues We must strengthen Parliament by building a consensus for a substantially elected second chamber that can more legitimately question the executive and ask it to think again.  It means reforming the Commons by increasing the independence of Select Committees. I favour the Chairmanships being decided by the House on a free vote. They need much better funding and more expert help, so that they have the ability to report swiftly on proposed legislation, particularly from the European Union. I also favour Ministers having to report their position to the Committees privately, before they attend EU Council meetings. And it means improving the quality and scrutiny of legislation by having a presumption that all non-emergency Bills should be published in draft form and subject to Pre-legislative scrutiny. I would also like to see more use of on-line forums to take account of informed public opinion. And it means dealing with the imbalance to the constitution that has been created by Labour’s failure to do anything about the so-called ‘West Lothian Question’ that enables Scottish MPs to force through unpopular measures on England but which in Scotland are the exclusive responsibility of the Scottish Parliament. University top-up fees was, of course, a prime example in the last Parliament.  A reduced majority, and a more rebellious Parliamentary Labour Party, mean that this problem can only get worse in Labour’s third term. It needs to be tackled in a way that is acceptable both to England and Scotland, consistent with my Party’s support for the Scottish Parliament and the enduring Union of the United Kingdom. We propose English Votes for English Laws, namely that only English constituency MPs would decide English domestic laws of the sort dealt with in Scotland by their Parliament. And Wales should be given the chance to decide if it wishes to have the same system as Scotland. We also believe that it is time to tackle the bias in the Electoral System by ensuring that all constituencies are of equal size so that votes count equally. At present there are huge differences with Inner City Labour seats on average 6000 voters smaller than Conservative and Lib Dem seats. So, we have a programme of reforms we would like to see, but a Labour Government with its own policies. We will continue to argue for coherence and consensus over further constitutional reforms, to try to avoid creating damaging conflicts at the centre of our structures of the sort we now see with asymetrical devolution, half a reform of the Second Chamber that leaves it too beholden to the Prime Minister and legal reforms that run the risk of politicising the Judges, as they are asked increasingly to review the constitutional legality of laws passed by the elected Parliament. So, watch this space. It should prove interesting.