Speech to the Australian Institute of International Affairs, Sydney, 1 July 1998


It may be somewhat self-indulgent to choose to speak tonight on constitutional reform in another country. People are often interested in constitutional issues as they affect their own country. But their eyes glaze over when it comes to the minutiae of systems that are unfamiliar to them.

But I make no apology for talking on this subject today. First, because I have found interest here in what is happening in the UK on reform of the House of Lords or on devolution to Scotland and Wales. Second, because the system in the UK is not unfamiliar to Australians: there are many interesting differences and parallels between British and Australian experience. And third, because I wanted an opportunity to correct some misunderstandings in Australia about what is going on in Britain. I was astonished for example to read recently in an Australian newspaper a critique of devolution on the grounds that it was

"a process which had had its day in the 1960s and '70s and was withering quietly away. In Scotland, it was of concern only to a minority, in Wales it was scarcely an issue at all."
That doesn't fit well with the facts: the failure of the only party opposing devolution to win a single seat in Scotland or Wales at the last election; or the 75% support for devolution in the recent referendum in Scotland-some minority!

What I would like to do today is to take in turn the Government's proposals for Parliamentary reform, for devolution and for public sector reform. Taken together, they represent the most ambitious and extensive programme of constitutional reform and modernisation undertaken by any government this century.

I must confess that this is a subject which fascinates me personally. Before I came to Australia, I worked in the Prime Minister's office in 10 Downing Street, where I was constantly surprised by some of the delightful twists that the British constitution can turn up. John Major once asked me what was the last possible date for an election. He expected me to say sometime in 1997, five years after the previous election. But when I looked into this, it turned out that although Parliament has to be dissolved after five years, that doesn't mean an election has to be held then. The only Act governing the timing of elections is one passed in 1694-the Meeting of Parliament Act-which says there can't be more than three years between the end of one Parliament and the beginning of the next. So the answer I gave John Major was "sometime in 2000-provided you are prepared to govern without Parliament for three years!" A tempting thought, except that the Government would soon have run out of money.


To an Australian audience, constitutional reform immediately brings to mind the issue of a republic. That is not the case in the UK, where republicanism is simply not on the agenda and where Tony Blair has-like John Major-shown himself a strong supporter of the monarchy.

I do not propose to delve into the reasons why the position in the UK is different from that in Australia-indeed insofar as Australia is concerned, it is not my role to pronounce on what is a decision for Australia and Australians. But some factors are obvious. First, the sense of physical remoteness from their monarch that some in Australia feel is not an issue in the UK. And second, the range of constitutional change being implemented at all levels in the UK makes it sensible to leave some anchorages in place.

The fact that republicanism is not on the agenda does not of course mean that the monarchy is or should be immune from change. The Queen, the Royal Family and their advisers all recognise this. They set up a group which has been working quietly for some time now on how the arrangements for the Royal Family might be adapted and updated as we enter the new Millennium. We are already beginning to see some changes: more openness, less formality, more accountability. The Queen has, for example, indicated a willingness to release papers from the Royal archives rather earlier than under previous practice, and has agreed that the National Audit Office should be given greater access to the way the funds provided by Parliament are spent.

And I suspect that the Royal Family sometimes get the blame for decisions taken in their name that they may never have been consulted about. I recall, for example, the planning for a State Banquet to mark the 50th anniversary of the Normandy Landings. I was horrified when I saw the seating plan for the top table. This had various members of European Royal Families sitting on either side of the Queen, with President Mitterand and President Clinton literally below the salt. I could not imagine this would go down well, given the crucial role of the Americans and French on D-Day. I asked why it had been done, and was told that the Palace insisted on strict protocol and that Monarchs ranked above elected Heads of State. I decided to ring my opposite number, the Queen's Private Secretary, who fully shared my concerns. He spoke to the Queen, who-I am told-said this was the first she had heard of this and of course President Mitterand and President Clinton should sit either side of her.


Before I turn to the reform of Parliament, I want to address one of the key elements of the Government's constitutional reforms: the incorporation of the European Convention on Human Rights into UK law. This has implications for Parliament, the Courts and indeed for people right throughout the UK. It marks a decisive shift to a legally enforceable system for the protection of fundamental human rights.

The European Convention follows on from the United Nation's Universal Declaration of Human Rights, and provides for such things as the right to a fair trial, to free speech, and to protection from discrimination on grounds of sex, race or religion. Britain was one of the original signatories of the Convention in 1950, but has never, unlike almost all other countries, incorporated its provisions into domestic law. So there has been no way for British citizens to get British courts to recognise rights accorded by the Convention. This does not, of course, mean that Britain has no framework of human rights legislation. Governments have introduced important statutory bars to race discrimination and sex discrimination, for example. And the common law has provided many of the other rights and safeguards enshrined in the Convention. But if a British citizen has felt that he or she was being denied rights under the Convention, their only recourse was to petition the European Commission on Human Rights in Strasbourg.

The reasons for this go to the heart of the British constitution. A fundamental principle is the sovereignty of Parliament, so there has been great resistance to allowing the Courts to strike down an Act of Parliament on the grounds that it is inconsistent with the ECHR. This is of course in contrast to the position in Australia, where the Constitution specifically empowers the High Court to determine if an Act of Parliament is contrary to the provisions of the Constitution.

The Labour Party in Britain, and others such as the Liberal Democrats, had for some time argued that British citizens could be given their rights in a way that did not infringe the sovereignty on Parliament. Interestingly, there were also some in the Conservative Party who also argued in favour of incorporating the ECHR on the grounds that it was better for issues to be decided by British judges that by a court in Strasbourg.

What the Government has done is to introduce legislation which provides:

It will then be up to Parliament to rectify the inconsistency-with strong pressure on it to do so. But it remains theoretically possible for Parliament either explicitly to pass legislation inconsistent with the ECHR or to refuse to amend legislation that is subsequently found to be inconsistent. That is unlikely, but does preserve the sovereignty of Parliament.


House of Lords

On Parliamentary reform itself, the Government is committed to abolish the right of hereditary peers to sit and vote in the House of Lords, on the grounds that it is wrong in the present day for a legislature to be dominated by those selected not by election nor on merit but by birth. There are at present 750 hereditary peers entitled to sit and vote in the Lords, about 60% of the total. Many, of course, attend the House of Lords only rarely-indeed one or two live in Australia. But there are still a significant number of votes where the hereditary peers determine the outcome.

The Government has made clear this is the first stage in a process to make the House of Lords more democratic and more representative. In the short term, this will include reform of the way life peers are appointed, so that party appointees more accurately reflect the proportion of votes cast at the previous general election-though the Government is also committed to maintaining an independent cross-bench presence in the House of Lords.

In the longer term, further changes will be considered. This staged approach is a pragmatic one. The Government believes it is better to end the most glaring constitutional anomaly rather than delay reform for what might be many years while a wholly new system was discussed and implemented.

House of Commons

For the House of Commons, the most significant issue is reform of the voting system. Britain has traditionally relied on the first-past-the-post system, and there are many continuing advocates of that, on the grounds that it has generally led to Governments with a clear Commons majority, without the need to rely on complicated coalition arrangements as is the case in many other European countries. But others in the UK-and most notably the Liberal Democrats-have argued the case for a move towards some sort of system of proportional representation.

The Government has set up an independent Commission to look at alternative methods for election to the House of Commons, and to make a recommendation. This recommendation will then be tested in a referendum, where people will be asked to choose between it and the status quo. The Government is separately changing the voting system for a number of other elections. It has introduced proportional representation for next year's elections to the European Parliament. And-as I shall outline in a moment-it is introducing proportional representation for elections in Scotland, Wales, Northern Ireland and London.

The Commission on the voting system for the House of Commons has a tough remit: to recommend a system different from first-past-the-post, that observes:

"the requirements for broad proportionality, the need for stable government, an extension of voter choice, and the maintenance of a link between MPs and geographical constituencies."
It visited Australia-and New Zealand-earlier this year to discuss these issues with Parliamentarians, political parties and academics here. It will be interesting to see what they make of the Australian experience. One point made to them was that in Australia, the alternative vote system in the House of Representatives-which meets the criteria of an extension of voter choice and maintaining a link with constituencies-is balanced with the transferable voting system for the Senate-which meets the criteria of broad proportionality. But that doesn't really help the Commission, whose remit extends only to the House of Commons.

The other element of reform of the House of Commons is perhaps more mundane, but also important, and that is looking at the procedures there. Some of them are incredibly antiquated. I rather doubt many of you will have witnessed the operation of the rule that says that points of order during a division may only be made while "seated and covered." "Seated" is not much of a problem. But "covered" meant that an opera hat was-literally-passed or thrown around among those who wanted to make a point of order. It wasn't the sort of thing designed to win respect for Parliament in the eyes of the public-and I am glad to say that that particular practice has now been abolished.

Other elements of procedure are also being reformed, though there is a natural conservatism about change, and a tradition that these issues should be considered on a non-party basis. There are also substantial changes planned in the way legislation is scrutinised. The Government is, for example, planning to publish more legislation in draft and to provide for greater opportunity for proper scrutiny of complicated and technical bills so as to improve the quality of legislation.


Let me turn now to devolution. I want to start with a brief description of what is planned in Scotland, Wales and Northern Ireland, and then to comment on some of the issues raised.


In Scotland, elections for the new Parliament will be held next May. There will be 129 members: 73 will be constituency members elected under the first-past-the-post system, and 56 will be regional members elected by the additional member system-similar to that used in Germany for example. The Parliament will run for a fixed 4 year term.

It will have devolved powers to legislate on a wide range of issues including health, education, local government, industry, justice and agriculture. Certain specific matters will be reserved for the Westminster Parliament: foreign policy, defence, social security, and general arrangements to ensure a common market across the United Kingdom. But anything not specifically reserved to the UK Parliament will be automatically devolved to the Scottish Parliament.

The parliament will also have limited powers over taxation. It will have complete control over local taxation-rates or other property taxes. And it will be able to raise or lower the basic rate of income tax by 3 pence in the pound for taxpayers in Scotland.

In the light of experience in Australia, it is perhaps worth noting some areas where the Scottish Parliament will not have devolved powers. These include:

All these will remain the responsibility of the Westminster Parliament. All are sensitive issues, that have been the subject of much public debate in the UK-as of course they have been in Australia. In the end, the decision was that, for all these areas, it would be wrong to have different arrangements in different parts of the UK.


The plans for Wales have some similarities to those for Scotland, but also some important differences. Wales will have an assembly with 40 constituency members and 20 regional members, again elected under the additional member system. And like the Scottish Parliament, the Assembly will have a fixed four-year term.

The big difference is the respective powers of the Scottish Parliament and the Welsh Assembly. The Assembly will not have powers to pass primary legislation. What is planned is executive devolution not legislative devolution. The Assembly will be responsible for administering a wide range of programmes in Wales, able to pass secondary legislation and to reform the various quangos operating in Wales. But this will be done within the framework of primary legislation passed in Westminster. The programmes administered by the Assembly will include most of those devolved to Scotland, including health and education. But they do not include responsibility for police or justice, where there is no tradition of a separate Welsh legal system.

Northern Ireland

I want also to cover briefly the arrangements in Northern Ireland. These were settled in the Agreement signed on Good Friday between the British and Irish Governments and the political parties in Northern Ireland.

This agreement provides for an assembly of 108 members, elected from 18 constituencies by single transferable vote, much as in the Senate elections in Australia. The elections for the Assembly were, as you know, held last Thursday, and the Assembly meets today to elect the First Minister and Deputy First Minister.

One of the notable things about the arrangements is the provisions to protect the position of minorities. For example, the agreement provides that:

"the allocation of Committee chairs, Ministers and Committee membership [shall be] in proportion to party strengths."
And there are further provisions to ensure that key decisions are taken on a cross-community basis, requiring specified percentages of both nationalist and unionist members to vote in favour.

The Assembly will have powers to pass primary legislation over a range of functions broadly similar to those devolved to Scotland, with the exception of revenue raising powers and responsibility for police and justice issues. But the Government has made clear it is willing to consider devolving responsibility for police and justice in the future, depending on the outcome of the various reviews set up under the Agreement.


(a) Why?

Having described the different systems for Scotland, Wales and Northern Ireland, the first question might be: why? Why is the Government going down this road? What's wrong with the present system?

The answer is that the proposals reflect the strong desire of the people in each of these countries to have more of a say in how they are governed. There has for some time been a concern that government from Westminster was too remote and did not reflect the particular needs and concerns of each country. The question could equally be posed the other way round: why is it necessary to centralise so much power in Westminster?

As I indicated at the outset, the only party to oppose devolution at the last election were the Conservatives, who failed to win a single seat in either Scotland or Wales. Since the election, the Government's proposals have been passed by referendums in the two countries, in the case of Scotland with a 75% vote in favour.

(b) Why different systems in each country?

A second question might be why we are planning different systems for Scotland, Wales and Northern Ireland. The answer is that this reflects the historical background, which is very different from the different countries. Scotland, for example, already has a separate legal system, and a tradition of separate legislation. Wales does not. Nor indeed has the Welsh Office had responsibility for police, justice or health which have all been run on a combined England and Wales basis. Indeed it was only in 1967 that it was formally provided that in Acts of Parliament references to "England" no longer included Wales.

Similarly-and perhaps more obviously-the situation in Northern Ireland is different in turn. The previous Stormont Parliament failed in part because of an increasing concern that the interests of minorities were being over-ridden. So the provisions in the new Assembly for sharing out ministerial portfolios and taking key decisions on a cross-community basis are unique to Northern Ireland. And the troubled background of Northern Ireland explains why responsibility for policing and justice is not being devolved, at least initially.

(c) Is this a federal system?

A third question might be whether these changes represent a move to a federal system for the UK. I believe the answer is 'no'.

In a narrow sense, it cannot be a federal system when the bulk of those living in the UK-those in England-are not covered by the new arrangements. But that begs the question whether Northern Ireland and Scotland will in future be in much the same position as if they were members of a federation, similar in many ways to the States in Australia.

Again, the constitutional answer is 'no'. This is not a federal relationship. The Westminster Parliament remains sovereign: it has chosen to devolve powers, but it retains the right to reverse that. Indeed, the resumption of direct rule over Northern Ireland in 1972 is an example of the exercise of just that. In practice, this may be an option that could be exercised only in extreme circumstances. But the principle of the sovereignty of the Westminster Parliament remains.

(d) West Lothian Question

The final question I want to address on devolution is what has become known in Britain as the West Lothian question. Isn't England treated unfairly under these proposals? Scottish members of the Westminster Parliament will be able to vote on legislation specifically applying to England-on education for example-but English MPs will have no say on education in Scotland, since that will be dealt with by the Scottish Parliament. The Government is proposing one measure to reduce the scale of the problem: at present, Scotland is over-represented at Westminster relative to its population; that will be ended when the next Boundary Commission recommendations are implemented.

But that does not answer the underlying issue. In strict logic, the position is hard to justify. But does it really matter? The Westminster Parliament lived with a similar position for many years in relation to the Stormont Parliament in Northern Ireland. And there are many other European countries where some regions have greater autonomy than others within a unitary state.

The United Kingdom has never been the classic, indivisible unitary state: it is a union of countries which has been flexible enough to accommodate separate national identities for some of its constituent parts. One of the objectives of devolution is to strengthen the union not weaken it. To enable the union to evolve in a way which decentralises power and extends political accountability. The alternative, of preserving what might be a tidier constitutional model at the expense of suppressing the undoubted wish for greater self-government in Scotland and Wales, would risk encouraging those who argue for independence and a break-up of the union.


I should not, though, leave the impression that England is being left untouched by the Government's constitutional reforms. First of all, there will be significant changes to the governance of London, a city with a population larger that that of Scotland and several times larger than Wales or Northern Ireland. There will be a directly-elected Mayor, who will oversee a number of London-wide programmes, including economic development and transport-where he will be responsible for the underground, buses and most main roads. There will also be an elected assembly (again using the additional member system) which will support the Mayor and whose members will sit on many of the London-wide authorities and boards.

Outside London, the Government plans to set up new Regional Development Agencies to co-ordinate programmes for business support, training and regeneration, working closely with local authorities and other local interests. This is part of the drive to decentralise power and decision-making, and to set up new structures based on partnership.

The Labour Party's manifesto also floated the possibility of elected regional assemblies in England. But it made it clear these would only be introduced where there was clear popular support for such a move.


I now want turn briefly to some of the issues on reform of the public sector itself, many of which have parallels here in Australia.

(a) Freedom of Information

Freedom of Information is one obvious example. Indeed, the British Cabinet Minister responsible for this subject visited Australia last year to find out more about the Australian system. Since then the Government has published a White Paper setting out its proposals. These represent a very significant strengthening of the existing system in the UK: There are of course certain exceptions, for example to cover national security, defence or international relations. There is also an exception for information which would cause substantial harm to internal discussion of government policy, an area which is always the bugbear for proponents of freedom of information.

I declare a personal interest here. As someone who has worked on the inside of Government for quite some time, I have had rather conservative views about freedom of information, including the need to protect advice to Ministers. But, over the last few years, quite a number of minutes I wrote to the then Prime Minister, John Major, have been released to tribunals of inquiry or the courts-on subjects ranging from ministerial improprieties to arms sales to Iraq and mad cow disease. And the sky has not fallen in! I still strongly support the need for certain information and advice to be protected, but I do feel such concerns can be overdone. And there are advantages in having an independent commissioner to review whether a document should be released: it breeds suspicion if the civil service is the judge and jury in its own case.

The Government's proposals on freedom of information go beyond the current system in Australia: there will for example be no conclusive ministerial certificates or ministerial vetoes. The test for disclosure will be based on whether substantial harm would be caused-and will be applied to the specific contents of documents rather than to any particular class of documents. There are safeguards to protect collective responsibility and advice on decisions still under consideration. But the proposals represent a radical shift in approach, towards a presumption of much more openness and the release of much more information.

(b) Openness in Budgeting

A second area of public sector reform I would like to highlight briefly concerns the department I have spent most of my career in: the Treasury. Traditionally, the Treasury has been one of the more secretive departments. It is true that it has published lots of information, but it has long preserved a certain mystique about the basis for economic policy decisions.

The new Government has been determined to make decision-making more transparent, and to remove suspicions that decisions may be taken for short-term political motives. One of its first steps-indeed announced only three days after it took office-was to make the Bank of England independent and to give it sole responsibility for setting short-term interest rates. And on the budget side, the Government published a Code for Fiscal Responsibility, and gave it statutory backing in the Finance Bill. This provides that the Government must:

The Government has recently published its first Economic and Fiscal Strategy Report and has committed itself to following the so-called "golden rule", namely that the government should not borrow to fund current expenditure but only to finance capital investment. Just as significant, each department from now on will be given a separate current and capital budget, so that investment plans are no longer squeezed out by the pressures of current spending.

Some may regard these issues as rather dry and technical. But they represent a substantial shift towards more openness and more accountability in a key area of economic policy.


I have now completed a relatively short survey of the extensive programme of constitutional reform in the United Kingdom. There are many areas I have not had time to cover, such as reforms to the health service or to education. Or the Citizen's Charter, which was a significant reform introduced by the previous Government, and where the new Government will be announcing its proposals later this week.

But before closing I want to address some of the concerns that have been expressed. Isn't this all rather piecemeal and incoherent? Why are there so many loose ends? Where is the vision of an all-embracing new constitution for Britain?

I would answer this in two ways. First that a piecemeal approach is the only way in which change can be secured. And second that there are a set of underlying principles and values that govern all these changes.

The alternative to a piecemeal approach would be to set up something like a Royal Commission on the constitution. History suggests that that would be a recipe for inaction. Such Commissions tend to get bogged down trying to resolve many competing interests, especially when dealing with a subject like the constitution which is guaranteed to generate passionate and divergent views. The Labour Government in Britain came into office determined to make a real start on constitutional reform, and with a mandate to do so. That is what it has done. It recognises that in some areas-such as reform of the House of Lords-there will be more to do in future: but that is not an argument for delaying the first stages of reform.

And the reforms that are being undertaken are founded on certain key principles:

A fairer system, with basic human rights incorporated into UK law, and with a more democratic House of Lords.

A more open system, with much greater access to information;

A more accountable system, with better scrutiny of legislation and greater transparency on economic policy;

A more modern system, with reform to Parliamentary procedures;

And a more decentralised system, not just in Scotland, Wales and Northern Ireland but also in England.

The Lord Chancellor has described all this as arguably the most radical programme of constitutional change since the Great Reform Bill of 1832. I hope I have explained this evening why such a claim is justified.

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