Reproduced from Sebastian Payne’s original piece in the UK Constitutional Law Group blog
In a recent Whitehall farce the deputy Prime Minister Nicholas Clegg urgently recalled an advance copy of a speech circulated to the media so that it could be amended to delete words that were causing a stir. The extract in question was the following, “Continued trouble in the economy gives the bigots a stick to beat us with, as they demand we ‘postpone’ the equalities agenda in order to deal with ‘the things people really care about.’ As if pursuing greater equality and fixing the economy simply cannot happen at once.” (See The Guardian, 12.09.2012, p11) The equality issue here was legislating to allow for same-sex marriage. The offending words, or word, was the description of the opponents of such a law as ‘bigots’. Act 1, scene 3 of the farce has the deputy Prime Minister’s spokesman saying, “This was not something the deputy prime minister has said. It was not something he was ever going to say.”
Whether the opponents of same-sex marriage are bigots or not depends upon the reasons for their objections. What attracted my interest in this incident was the observation, “As if pursuing greater equality and fixing the economy simply cannot happen at once.” Mr Clegg is correct in identifying this particular objection as a false dichotomy. After all, different government ministers deal with the economy and law reform. Management of the economy is not primarily dependent upon legislative activity requiring a monopoly of the legislative timetable. There is also a distinct difference between objections to reform that focus on the substance of the proposals and objections based on timing. My own experience of arguing in favour of a written constitution is that objections of the latter type are more common than those based on substance. In discussion with one famous constitutional lawyer, her comment on such a reform was, “It’s not going to happen and that is that.” In a panel discussion in front of an international audience, my advocacy of a written constitution for the UK was responded to by an eminent constitutional lawyer with the words, “I do not see a constitutional moment”.
Reading this summer Eric Hobsbawm’s autobiography Interesting Times (Abacus, 2003) I was amused to come across the following passage about Cambridge University as he first encountered it as an undergraduate in the 1930’s and subsequently as a don,
“The Cambridge past, like the ceremonial fancy-dress past of British public life, was not, of course, a chronological succession of time, but a synchronic jumble of its surviving relics. The glory and continuity of seven centuries were supposed to inspire us, to assure us of our superiority and to warn us against the temptations of ill considered change…The main contribution of Cambridge to political theory and practice, as described brilliantly by the classicist F.M.Cornford in his little squib Microcosmographica Academica (1908) was ‘the principle of unripe time’. Whatever anyone proposed, the time for doing it was not yet ripe. It was powerfully reinforced by the principle of “the entering wedge”.” (page 103)
It is interesting to reflect on the dynamics of constitutional change especially so in the UK where change is often dragged out across the centuries. We appear to have rationalised and institutionalised the snail’s pace of reform by calling it ‘evolution’.
Two striking cases of failure to deliver constitutional reform are in relation to the House of Lords and on war powers. In both cases there has been cross party agreement in recent years that reform is required. With Lords reform there has been a failure to find an acceptable model of reform which those who want no change at all have been able to exploit. This failure has been a product, I would suggest, of offering proposals that would change the composition and basis for membership of the upper chamber but have failed to address the broader systemic consequences of such change. A case of more work being needed rather than less. With reform of the war powers there have been three substantial select committee reports on this since 2004 and a shorter though still significant select committee report in May last year from the Political and Constitutional Reform Committee. Since the May 2011 Report there have been two further very short reports (9th and 12th Reports of Session 2010-12) from the same committee urging the government to act. Notwithstanding the Foreign Secretary’s commitment given on the 21st March 2011 in the House of Commons to, “enshrine in law for the future the necessity of consulting Parliament on military action” the government’s resolve to do so appears to have evaporated. The 12th Report, whilst welcoming the inclusion in the revised Cabinet Manual of a reference to a convention to consult Parliament, expresses dismay at the overall content of the letter received from the Minister for Political and Constitutional Reform, in particular the following passage,
“As the Government has already committed to observing the convention, the case for urgency has not been established, and I do not therefore believe it would be appropriate to set out a fixed timetable for progress on this matter. I understand that this will not satisfy the Committee’s concerns.”
Major constitutional change does occur in the UK so the question remains why radical change sometimes happens and in other instances proceeds in dribs and drabs or not at all. If there are no hard and fast laws of the social world that determine what will be the precursors to constitutional change presumably there are certain factors likely to lead to it. Revolution is one such factor but arguably the very nature of revolution is constitutional change, which pushes the causal question one step back rather than answering it. In relatively settled societies such as the UK constitutional change appears to result from long standing demands or grievances which have emerged as a coherent programme and have coincided with the political opportunity to implement them. The Labour government of 1945 is one example and, notwithstanding criticisms of the coherence of the programme, the 1997 Labour government is another. The Belfast Agreement is another interesting example of change through mediation post-conflict, a solution achieved through the relevant parties acknowledging stale-mate. What appears to be the problem with the present Coalition government’s ambitions for change is that there are three groups involved, the left and right wings of the Conservative party and the Liberal Democrats. They are not agreed between them as to what is desirable and being a more fragile coalition than was at first apparent, there is not the political authority to impose the constitutional change that was apparently part of the government’s programme. Advance, centre stage, the ‘unripe moment’ accompanied by the ‘entering wedge’.
Posted on behalf of Sebastian Payne, Lecturer in Law, Kent Law School