CONSTITUTIONAL CHANGE AND IMPLICATIONS FOR BRITISH NATIONAL IDENTITY
Jack Citrin

A major element of constitutional change initiated by New Labour after 1997 is devolution, in particular the creation of Scottish and Welsh Assemblies. This institutional change has clear implications for the enhancement of sub-national, ethnic identities, leading some to posit a distinction between being English and being British as well. During the same post-1997 decade, European integration proceeded apace, with national governments ceding more authority to European institutions. In particular, the influence of the ECJ grew across the Union. In a sense, Britain was giving way to Europe. These changes occurred in the context of the demographic changes of the last 40 years that have so altered the ethnic composition of British society. Due to immigration, British began to proclaim itself a multi-cultural society and laws such as the Race Rel;ations Act were passed to create rights for minorities that had never previously been singled out.

This paper intends to explore public reactions to these changes, focusing on Britons' self-conceptions and the pattern of their subnational, national, and European identifications. Using public opinion data, including materials that contrasts British attitudes with those of other European countries, i will explore how conceptions of being British have changed, if at all.

Rights Culture and the Codification of Rights
Joseph F. Fletcher

Over the last several decades some 80 countries have adopted a bill of rights as part of a process of constitutional renewal. Michael Ignatieff, Mark Tushnet and others have argued that this wave of rights entrenchment is an expression of a worldwide culture of human rights. My paper examines in a comparative context the relationship between rights culture and the mid-1990s British debates over a codified bill of rights, leading to the adoption of the Human Rights Act of 1998. Using comparable citizen and elite survey data from Britain, Canada and Australia, statistical models are used to estimate the relationships between basic values and support for a bill of rights as a means of protecting basic rights. In general, support for the codification of rights is indeed rooted in a culture of rights, but in a largely unanticipated way. Support for bills of rights, as ti turns out, has little to do with support for the value of liberty. It is instead firmly rooted in the value of equality.

Detailed examination of the British case shows that results for political elites correspond to the general pattern evident among both citizens and elites in Canada and Australia. The results with British citizen data, however, are sharply differentiated along educational lines. In essence, those closest to elite discourse—the most educated—fit the general pattern. Their views of codified rights are primarily rooted in the value they place upon equality. In contrast, those who by their lack of formal education are most removed from elite discourse do not reflect the connection forged in rights culture elsewhere between equality and support for a codifying rights. Instead, among the less educated Britons the value placed on liberty—not equality—is most closely associated with support for a bill of rights. These results highlight both the learning processes and social diffusion of rights culture that lay behind the adoption of Human Rights Act.

What are we to make of New Labour’s Constitutional Reforms? Robert Hazell & Andrew McDonald

Abstract Labour’s programme of constitutional reforms has been attacked from both Right and Left. For the Right, it has variously been a betrayal of Britain’s traditions and a sham, distracting us from a centralisation of power in the hands of the Prime Minister. From the Left have come charges of a job half-done, of a programme undermined by curbs on civil liberties and of mixed messages by a Prime Minister who never really believed in the pure faith of constitutional reform.

What are we to make of all of this? In assessing Labour’s reform programme, this paper will provide context for the other essays in the volume. It will describe what has been done – and what remains to be done.

The paper will begin with a brief discussion of the pattern of British constitutional reform through the twentieth century – and the progress of constitutionalism internationally in the second half of the century.

The record since 1997 will be discussed under four headings: 1) decentralization of power – the Bank of England; Scotland; Wales; London; local government reforms; English regionalism; 2) citizens’ rights - Human Rights Act, freedom of information; 3) democratic reforms – proportional representation, new methods of voting, democratic engagement, House of Lords; and 4) judicial reform – office of Lord Chancellor, judicial appointments, judicial concordat.

Conclusion: the legislative record since 1997 is remarkable. It is hard to regard it as a reform programme (at least until 2003) because it purposely wasn’t conceived and run as such. But the outcome has been the most dramatic reshaping of the British state since the First World War. But the toughest part is yet to come. If the reforms have a common theme, it is about changing the relationship between citizen and state, to give the former more authority and protection. Reordering the institutional architecture may be a precondition for changing that relationship - but it isn’t sufficient. The hard part is for all parties to learn how to make the new relationship work.

Ailsa Henderson

Devolution in the United Kingdom coincided with campaigns for institutional renewal in other Westminster political systems. Devolution to a new territory in Canada, electoral reform in New Zealand and the campaign for an elected head of state in Australia were buttressed by efforts to enact more procedural parliamentary reform in each of these cases. This paper explores the UK experience of devolution by placing it within a wider comparative context of institutional reform. The paper addresses three key questions. First, to what extent were the goals of institutional reformers within the UK distinct from the goals of other campaigns for reform in Canada, Australia and New Zealand? This first section addresses common problems associated with the Westminster political system and the growing sense of democratic malaise within the political cultures of advanced-industrial states. Second, to what extent have these goals been realized in the institutional structure and policy outputs of the devolved assemblies? This section addresses calls for a form of ‘new politics’ in the UK and examines, systematically, evidence of its manifestation in the backgrounds of representatives, their behaviour in plenary debates and emerging institutional working cultures. Third, to what extent has devolution in the UK begun to alter the way that citizens relate to their political system?. The final section explores trends in political attitudes and behaviour following devolution. Paying particular attention to the creation of new legislative bodies in Scotland and Wales the paper also explores reform in London and the campaigns for assemblies within England.

Introduction
Andrew McDonald

Abstract
Purpose of book: 1) to tell the story of what has happened in Britain’s ‘quiet constitutional revolution, how it has been done and why (ie Part One of the book);

2) to stand back from the story and to weigh it significance – by considering it from contrasting methodological and comparative perspectives (ie Part Two).

Contribution of the book: Remarkable story of the re-shaping of the British state and yet it has had remarkably little attention outside specialist studies. This book is based on the premise that something important has happened which merits greater attention – and whose full significance has not yet been fully grasped. Aimed at the general reader.

Definition of terms, scope etc (to be done briefly): Constitution – does Britain have one? (answer Yes, of course; deal with differences between codified and uncodified. Offer simple definition of a constitution as setting out most important rules governing relations within government and between government and citizen. Dismiss the argument that British constitution can never be defined) Dates - focus is on the period since New Labour has come to power. Will look at period before 1997, but only so as to understand what Labour has done.

Geography - yes it is a book on the UK constitution but our focus is primarily on Great Britain. Significant developments in Northern Ireland since 1997 – but N Ireland is different from Great Britain (thank heavens). Introduction of essays and principal themes.

REINVENTING BRITAIN – HOW IT HAPPENED
Kenneth J. MacKenzie

1. Within a year of the Blair Government taking office, “Bagehot” in “The Economist” was accusing them of presiding over “a frenzy of constitutional reform” which needed “to be underpinned by some unifying political vision”. Despite their undoubted commitment to their reform programme in New Labour’s 1997 Manifesto and the collective consideration it received within Government, ministers showed little appetite for contemplating or presenting constitutional change in the round. Indeed, they found some of the consequences of their own reforms to be a source of embarrassment or frustration. Nevertheless they have transformed the landscape of governance beyond recognition and in some aspects, irrevocably and their achievements in this area seem likely to be a significant part of their monument as an administration.

2. This paper describes how the machinery for that collective consideration was put in place, virtually from scratch since constitutional reform as such was not a subject which featured in the previous Government’s agenda. Drawing on the contingency plans for devolution prepare before the 1992 election and on the Cabinet Secretary’s pre-election discussions with the Opposition, the Economic and Domestic Affairs Secretariat of the Cabinet Office drew up a plan of action for handling the Manifesto proposals and clearing them through Whitehall. In so doing, they paid heed to the lessons from the failure of the previous Labour Government’s devolution scheme in the 1970s.

3. Thus a strong Constitution Secretariat was assembled in the Cabinet Office to coordinate the whole process but the initiative and policy ownership were firmly in the hands of the departmental Minister and officials concerned.

4. That was a particularly crucial decision for the “flagship” of the programme, namely devolution to Scotland and Wales. A pre-election Interdepartmental Group of senior officials in Whitehall had been rather sceptical of handing the policy lead to the territorial departments, anticipating the need to protect the putative interests of their own prospective ministers. All concerned underestimated the head of steam behind the devolution policy especially as it had emerged from the Constitutional Convention in Scotland and New Labour’s Joint Consultative Committee with the Liberal Democrats. There was also the powerful impact of its perception as “the unfinished business of John Smith and the misplaced expectation that the new Government might be overly dependent on the votes of Welsh and Scottish MPs. That steam took sufficiently long to evaporate to allow the devolution schemes to become unstoppable. The paper will explain how the other reform items – Freedom of Information, European Convention on Human Rights, Greater London Assembly etc. - followed so swiftly in its wake.

5. The paper will also set out the alternative arrangements considered, the committee structure which was used and the principles which guided the discussions. It will also give some insight to what went on in the committee room.

6. It will demonstrate that the traditional Cabinet Committee system, with the distinctive touch of Lord Irvine, delivered what was wanted in the Blairite sense that “What matters is what works”. That remains a formidable achievement despite the absence at that time of a Department of Constitutional Affairs or even a White Paper embracing the whole programme.

Reform of the Judiciary in the British Constitution: The Emergence of the Third Branch of Government
Kate Malleson

Abstract
The provisions of the Constitutional Reform Act 2005 have fundamentally changed the place of the judiciary in the UK constitution by instituting a greater separation of powers between the branches of government. The reform of the office of Lord Chancellor, the transformation of the Law Lords into a Supreme Court and the creation of a new judicial appointments process have rebalanced the constitution and laid the foundations for the judiciary to occupy a new position as the third branch of government. This paper identifies a key feature of this change as being a shift in the conception of judicial independence from a principle relating to each judge individually to one which refers to the judiciary as an institution. It explores the implications of this more collective vision of judicial independence for the governance of the judiciary and its future role in the British constitution.

The Constitutional Consequences of the European Union
Craig Parsons

The core story behind the new era of British constitutional reform is a largely domestic one about the agenda of the government that arrived in 1997. But much of the impact of the Labour agenda—and indeed some of its inspiration—reflects membership in the European Union. Already before 1997 the EU had opened major breaches in the relative constitutional stability of the mid-20th century, challenging (some say ending) parliamentary sovereignty, contributing to the introduction of referenda, encouraging development of subnational governance, bringing in proportional-representation voting, and cracking open collective Cabinet responsibility. Debates over these breaches also partly restructured competition between the dominant parties, opening a new political fault line that set incentives for Blair’s turn to constitutional reform. EU institutional battles crosscut old Conservative-Labour divides over market regulation and redistribution, pitting advocates of a more open, “multi-level” Britain-in-Europe against defenders of a unitary, independent tradition. For Labour, one appeal of taking up devolution and more codified rights was that they evoked this same battle and so divided Conservative elites and voters. (They also divided Labour, but years in opposition left the Left relatively willing to follow Blair’s lead). Since 1997 the more domestically-focused constitutional reforms have greatly extended EU-related shifts of power to courts and political players outside Westminster, and further fragmented familiar patterns of twoparty politics.

The chapter’s most novel argument stresses this fragmentation. The constitutional consequences of EU membership that may most interest citizens are the least understood, arising in patterns of party representation. It is not difficult for informed observers to see that the EU challenges parliamentary sovereignty, has shifted power to courts, and has at least mildly encouraged regionalization and devolution. Less obvious—but probably of more quotidian interest to citizens, especially in England—is the EU’s challenge to claims of democratic representation through a choice between two governing parties. The notion that citizen concerns and elite policy debates can be legitimately connected to decision-making through competition between two main parties is hardly less central to the modern British system than the principle of parliamentary sovereignty. Such a notion may make sense when the most salient debates can be aligned and packaged into two distinct sets of options, as was arguably the case through the middle of the 20th century (though always with some cross-cutting debates and dissent on Right and Left, of course). But EU accession introduced a major, enduring, cross-cutting debate in which both the Labour and Conservative parties—built around socio-economic issues—effectively became obstacles to representation and choice. Neither party can offer coherent positions on both EU policies and Right-Left ones unless its leaders impose some of them from the top down and avoid intra-party and public discussion. While some citizens’ leanings will be reflected in the electoral options that result (for the moment, an anti-European Right and a more pro-European Left), the roughly equal number of voters and interest groups who combine the positions differently are effectively forced to choose between whether they care about classic Right-Left issues or European ones. EU enlargement and the failure of the EU constitution may signal the end of a federalizing period and largely close this active debate, restoring at least some of the potential for the two main parties to reflect the most salient debates in the polity. Further EU federalization, on the other hand, is sure to worsen this problem.

ABSTRACT OF PAPER ON WHY CHANGES HAVE COME ABOUT
Peter Riddell

The main theme is that the Labour Party as a whole, and particularly the leadership, has never fully embraced constitutional reform, and a pluralist view of politics. My paper will look at the origins of the constitutional reform programme put forward at the 1997 election and argue that these proposals developed out of separate and distinct experiences, rather than a coherent overall view of the constitution- especially after Tony Blair took over the party leadership in July 1994 following John Smith’s death. Traditionally, the Labour Party had been a defender of the constitutional status quo and had taken a majoritarian view of politics. In the late 1970s, a majority of Labour MPs voted against proportional representation for the European Parliament, and the party was deeply divided over devolution, partly because of a belief that centralism was necessary to achieve socialist goals. The Callaghan Government resisted reform of the Official Secrets Act. Moreover, even in the mid-1980s, when Labour’s electoral position was very weak, only a tiny minority of the party showed any interest in electoral reform, or backed Conservative/Liberal proposals to incorporate the European Convention on Human Rights.

Demands for constitutional reform developed after Labour’s third defeat in 1987, and even more after the fourth loss in 1992, in reaction to the long period of Conservative dominance. In Scotland, the steady decline in Conservative support after 1983, and, in particular, the unpopularity of Margaret Thatcher, created growing hostility to “colonial rule” from London and provided the background to the Scottish Constitutional Convention and the new plans for devolution. This happened to a much lesser extent in Wales where opinions were sharply divided. Quite separately, the growth of judicial review was linked to a debate about the need for a judicial counterbalance to one party dominance of the executive. This was linked to clashes between ministers and judges over immigration and social security cases. That led to increasing demands for a domestic Human Rights Act, which were taken up by Labour, as well as Liberal Democrat, lawyers.

These trends came together during the two years when John Smith led Labour. He was both a lawyer and a Scot and took an across-the-board view of constitutional reform. That is when the debate over reform hardened into firm commitments. After Smith died, Tony Blair showed little interest in constitutional issues ( in contrast to the Scots Robin Cook and Gordon Brown), though he endorsed the programme he had inherited. His caution and distance were partly because focus groups and polling showed that voters cared more about the economy and public services, and partly because, instinctively, he had little interest in, or feel for, this debate. So he warned about the big “constitutional” tail wagging the dog, ie dominating a Labour Government’s legislative programme. He insisted upon referendums in Scotland and Wales on devolution. This infuriated the Scottish and Welsh Labour Parties, but was intended to reduce parliamentary problems over the passage of devolution legislation in case of a small Labour majority. At the same time, demands for a “new style of politics” increased in response to accusations of Tory “sleaze”, the cash for questions row, the Scott inquiry into “arms for Iraq” etc.

Blair adopted a “big tent” approach- to maximise support, including talks with Liberal Democrats. This led to the Robin Cook/Robert Maclennan agreement of March 1997 on a detailed legislative programme of constitutional reform ( and later a joint consultative Cabinet committee involving leading Liberal Democrats). However, there were always internal contradictions in Blair and New Labour’s approach. Unlike Cook, Blair was not interested in sharing power or institutional/constitutional checks. ( That was also the view of many Labour leaders and MPs who remained strongly opposed to PR.) Blair wanted to maximise support for his viewpoint, not to create constraints upon it. That, and his lack of interest in constitutional issues, explains many of the inconsistencies and ambiguities in Labour’s programme since 1997.

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