Ep. 214 UK Constitutional reform - more still to do?

Happy New Year, pod fans and welcome to the A-level politics show, episode 214 to be precise. And today we will focus on the UK Constitution. Now, there are many types of questions you can get asked when it comes to this topic. Is the UK Constitution working? Have reforms introduced since 1997 been a success? You could get asked specifically about any number of reforms, such as devolution and whether it's been any good, or if the Human Rights Act has achieved its goals, or if the UK Supreme Court has been good at holding the government to account etc etc etc. You can also get asked a question on potential reforms to come. What if question if you will? So should the UK have a codified constitution or should there be an English parliament? Both are questions that have been posed in recent years. Today's pod focuses on this last bunch of potential questions in a nutshell, the case for further constitutional reform. So in a way we will have to answer several questions at once. Should the Human Rights Act be replaced, by an entrenched and codified constitution that would include a British Bill of Rights? Should devolution be extended to the English regions? Should the House of Lords be elected? You could of course be asked whether the electoral systems used in the devolved bodies should be used for UK general elections. But that's a question that most of the time is dealt with in the electoral systems topic and in other podcasts that I've produced. So the question today is this, evaluate the view that recent constitutional reforms need to go further still. My first paragraph will focus on extending devolution in England. My second will center upon the House of Lords and whether to elect it. And my third will be all about whether the Human Rights Act ought to be replaced by an entrenched and codified constitution with a Bill of Rights. In your answer, you can of course address whether the reforms introduced thus far, such as the introduction of Meryl Cies in England or the plans under labor to remove all hereditary peers have gone far enough, but you should not limit your answer to just what has happened. You need to think about what comes next. So you need to think about the merits and demerits of further proposals. My direction is this recent constitutional reforms should go further still. Let's begin with devolution. Let's first define what devolution is. It's the transfer of large amounts of power from central government to elected bodies in Scotland, the Scottish Parliament, Wales, the Welsh Senedd and Northern Ireland, the Northern Irish Assembly. Some cities in England were also given the chance to elect mayors such as in London. There are those who wrongly claim, I think, that devolution does not need to go further. In essence, it's gone far enough. Those regions and nations that really wanted devolution have got it, firstly after 1997, when Scottish voters opted in a referendum to establish a Scottish Parliament, when Welsh voters chose to have an assembly and Northern Irish voters cemented the Good Friday Agreement to end sectarian violence and agree to power sharing. Further powers have been granted since in a 2011 referendum, Welsh voters approved of the Welsh Assembly gaining primary legislative power in more areas, including health. The Wales Act 2014 allowed control of some smaller taxes to devolve institutions such as StampJuity. The Wales Act 2017 established the Assembly and Welsh Government as permanent features of the UK Constitution and allowed for the Assembly to be elevated to the status of a Parliament or Senedd in Welsh. The Scotland Act 2012 gave the Scottish Parliament powers to vary income tax rates up or down by 10% as well as devolving further powers to them, for example, the regulation of controlled drugs. The Scotland Act 2017 devolved even more power, including the power to set income tax bans, control over air passenger duty and to collect half of the VAT raised in Scotland. It gained more power over welfare, roads, rail and on gas and oil extraction. Supporters of all of these laws say that Scotland now has become the most powerful sub-national government in Europe, so why do we need more of it? In England, the creation of Metro Mairs point to an eventual evening out of powers across the regions and nations that make up the UK. Greater Manchester is now run by an elected mayor with greater powers on how money for the region is spent. The Labour Government elected in 2024 as made proposals to further devolve power to English regions, taking the number of English maritalties to 21, representing 70% of the English population. This asymmetrical devolution whereby powers aren't the same in every region is arguably a good model for the UK, given the varying levels of support from place to place. Some regions in England feel well served by the Westminster Parliament, so they won't necessarily want further devolution, while others do not, and so it is right that devolution is applied on a case-by-case basis. Those who support what has happened already may also be very wary of going further. Only a few English regions have a strong regional identity, such as Yorkshire and the West Country. If regional assemblies were introduced throughout England, you may see competition for power amongst existing devolved bodies. Having regions in charge of taxes could lead to damaging tax competition in a bit to lure businesses to specific regions. The Conservative Government's free-ports idea highlight the danger of tax competition between regions as the lower tax regions take businesses away from the higher tax ones. You should only go further on devolution as well if there's cross-party support, which arguably there isn't. Labour have, for example, abolished the Police and Crime Commissioners established by David Cameron's Conservatives. The Sunack Government openly opposed the work of devolved governments while the Starma Government has created the Council for regions and nations. Yet this argument should not be taken too far. There is indeed cross-party support for greater dispersal power because there is a recognition among the all parties that Westminster and Whitehall are poor when it comes to implementing and delivering policy. Central Government frequently fails to understand regional sensitivities. They might point to an example such as the PASTY tax proposed by the Conservative Government in 2012, which could have affected the West country businesses when it came to Cornish pasties. Regional authorities, rather than Westminster, are arguably best placed to take decisions on tax and on other matters that suit regional needs. We've seen this fact on show in Manchester where bus journeys have been capped by £2 at £2 by its mayor Andy Burnham. And there remains real problems with existing arrangements so we need to go further. Asymmetric devolution is problematic. Currently, only some cities and metro regions have enjoyed devolved power in England. Regional assemblies or more maritalities with greater power would resolve this asymmetry by creating a more federal system. It would therefore correct the democratic deficit that the current arrangements produce. This current arrangement whereby some devolved regions have lots of power and some have very little has created the West Lodian question or what to do with non-English MPs in Westminster, a parliament that is increasingly left with voting on English only matters. Furthermore, asymmetry creates uneven rights. Welsh people under the age of 25 can receive free prescriptions while the English under 25s cannot. Scottish students do not have to pay tuition fees English students do. Even the devolved regions and nations feel that devolution remains a work in progress. Despite demands to devolve policing and justice to Wales, the UK government declined, which shows that the powers that devolved bodies have are still subject to approval by Westminster. There is still too much centralisation. The Westminster Parliament has extensive reserve powers as shown in the vote to Block Scotland's Gender Recognition Act from Becoming law and how the UK Supreme Court has effectively determined trans policy throughout the UK despite the protests from the Scottish government when it ruled that only biological females can access women's only spaces in 2025. Thus, there is still more to do because the existing reforms do not go far enough and the potential reforms would make the UK a fairer, more efficient place. Next up, let's look at the House of Lords and remind ourselves first of what it is. The House of Lords is one half of the UK Parliament. It helps to amend and revise laws and while it can delay legislation, it cannot permanently block legislation due to the Parliament acts of 1911 and 1949. It has only a minimal role when it comes to examining bills promised in a manifesto due to the Southbury Convention and due to the 1911 Parliament Act cannot block budgets. Why? Because it is unelected. It is comprised mainly of life peers, people who have been appointed by the Prime Minister. It also has hereditary peers, those who pass on their title to their children more on them in a moment. We also have cross-bench peers who have no party affiliation and who vote independently of a whip, and the Lord's spiritual, the 26 or so religious leaders. It sounds bonkers, right? Well, there are plenty of people who believe that one, the Chamber works well, and two, that the recent reforms have addressed the main problem with the Lord's specifically the hereditary component under the Blair government. All but 93 hereditary peers, those members of the House of Lords who could pass on their position to family members, were removed. Starmer's Labour government are going a step further and have introduced a bill to remove the remaining hereditary peers, and that will further increase the legitimacy of the Lords as only life peers can now be appointed. In addition, Lord's appointments are now recommended by an independent commission before being approved by the Prime Minister, perhaps reducing the stench of corruption and unjuvening patronage given to the nation's leader. In addition to improving legitimacy, the removal of the hereditary's also had another helpful democratic side effect since it limited executive dominance as it ended the conservative majority in that Chamber, most of the hereditary's up to the late 1990s were conservative. So the Lord was then able to challenge the conservative government more effectively between 2010 and 2024, for example, it defeated the government over cuts to disability benefits. The Lord's has also become a champion of rights. It tabled amendments to the EU withdrawal bill in 2017, inserting that the rights of EU nationals living in the UK must be upheld. In January 2022, the Lord's initially rejected parts of the policing bill that restricted noisy protests, again showing how the Chamber defends long-standing civil liberties, such as the right to demonstrate. The Lord spent a much longer period of time than the House of Commons examining the safety of the Rwanda Act in 2024, ensuring that it complied with international law. No one party dominates the Chamber, which has also posed a challenge for the current Labour government. In the 2024 to 25 session of Parliament, Labour was defeated 79 times by the Lords, yet the executive whipped House of Commons passed all of its bills, showing that the Lords, not the Commons, is the place to be when it comes to challenging the work of government. Thus perhaps we've hit the sweet spot and perhaps we don't need to elect it or do anything more with it, right? Indeed, supporters of the Lords believe that electing it would create more problems than it solves, electing it would rob us of the expertise and wisdom of ex-ministers and independent cross-bentures, replacing the current format with an elected second chamber would arguably result in gridlock with newly elected legislators eager to flex their muscles, and elected chamber may well ignore the Southbury Convention, which forbids the Lords from touching manifesto commitments, because those elected will enjoy a separate mandate from the people. It may also lead to gridlock as both the Commons and the Lords would claim equal legitimacy. However, other countries have two elected chambers where one is superior to the other in relation to the powers they hold, and the sky hasn't fallen in. The French National Assembly, which is elected, can remove the Prime Minister, while its Senate, also elected, cannot. In any case, maybe a bit of gridlock would be good, laws would be more carefully considered, and it would put an end to overt executive control of the legislature. We see that with the aforementioned Safety of Rwanda Act 2024 that still passed once the government dominated Commons stripped out the perfectly reasonable amendments made by the Lords. In addition, hereditries are not the only problem with the Lords. There is a whiff of corruption surrounding the appointment and conduct of Life Peers 2. The public were outraged at Boris Johnson's resignation on his list, which attempted to award his own dad, a man accused of domestic abuse, a peerage. He simply ignored, this is Boris Johnson, the independent appointments commissions concerns about appointing Evgeny Levvedev, a stooge of Putin. Sunak made David Cameron foreign secretary by fast tracking his peerage to the Lords, despite Cameron's questionable ties to China and his controversial role in the Green Sill lobbying scandal. Other peers have used their access to decision makers to enrich their own pockets. Conservative Baroness Michele Mone lobbied extensively for Medpro to be awarded lucrative PPE contracts during the pandemic. It later transpired that the company then awarded both Mone and her husband millions of pounds as a reward. Labour peer Lord Evgeny's of Watford has been accused by the guardian of offering cash for access to ministers and has since been suspended from the chamber. Thus further reform is needed to put an end to this corruption. Furthermore, a fully elected second chamber would give greater representation to the regions and address the issue of a lack of resemblance. Some 46% of peers are resident in London and the South East, despite the fact that only a quarter of the UK's population live there. If the House of Lords was elected using a system of, say, proportional representation, it could be said to accurately represent the wishes of the people and would allow smaller parties to have more than influence on the legislative process. Electing the Lords would almost certainly result in a chamber that more closely resembled the UK. Only a quarter of peers are women and over 50% are over 70. This is led to accusations that it is the best day care centre for the elderly. Hence why there is still much to do when it comes to Lords reform. Finally, let's consider the case for a codified and entrenched constitution with a bill of rights. The UK currently has an un codified constitution. This means that it is multi-sourced. A codified constitution is instead found in one place like the US Constitution. The UK Constitution is also un entrenched, which means it can be altered via a simple act of Parliament, unlike an entrenched constitution that is protected from short term easy changes. The US Constitution, for example, requires a 2/3 vote in both houses of Congress and in three quarters of the states to agree to an amendment. This is why its rights are entrenched, whereas the Human Rights Act in the UK passed in the late 1990s can be scrapped should a future government wish to do so. Those who favour the UK system focus primarily on its flexibility in contrast to that with the US. States in the US have had sensible restrictions on carrying handguns in public places struck down because of the second amendment right to bear arms, which is entrenched. I'm thinking of the New York Pistol case in 2022, where the Supreme Court struck down sensible bans on carrying handguns in Manhattan. While the UK was able to very quickly introduce restrictions on the sale of guns after the 1996 Dumb Lane massacre, the current arrangements in the UK are arguably working well. Parliamentary sovereignty, for example, ensures that the executive cannot become too powerful. We saw this with the Mila One case where the UK Supreme Court confirmed that only Parliament could give the Prime Minister authority to enter into Brexit negotiations. Yet the current arrangements also get the balance right, arguably. The government is not allowed to be too powerful, yes, but it can still be allowed to govern. The 2019 general election gave the UK government a clear mandate to get Brexit done, and thus restore political certainty, a quality that can only come with strong government that can take the size of action. This strong and stable government is only possible, say it supporters, from an un codified constitution. The executive can control legislative outcomes, thus fulfilling their mandate and control economic matters. The Labour government was able to take unpopular decisions such as raising employers national insurance in order to plug the deficit left by the previous conservative government. A lack of entrenchment has also not curtailed rights. The Human Rights Act has stood for almost 30 years, and further rights have been put on the statute book, such as the Equality Act 2010, Marriage Equality legislation, and pending rights on assisted dying and on lowering the voting age. The Human Rights Act empowers UK courts to issue statements of incompatibility, and it has allowed judges to declare unlawful any action that is incompatible with the European Convention on Human Rights or ECHR. Yet the current Human Rights Act lacks entrenchment, and has been sidelined when it has suited the government. The Illegal Immigration Act 2023 effectively criminalised asylum seekers, other than if requested via a non-existent legal entry into the UK. Labour's proposals make the process harder still. Right-wing parties are now openly calling for the UK to leave the ECHR, leaving the Human Rights Act effectively redundant. Hence why entrenchment is needed, and that entrenchment can only come via a codified constitution. Rights would be better protected. Witness how the Public Order Act 2023, which gave police extraordinary powers to arrest protesters, was rushed to Parliament with barely any scrutiny in time for the King's coronation. A codified constitution would establish the rights of citizens and laws mentioned, and could be struck down if they encroached upon those rights. Under this new codified arrangement, it would be much harder to ban noisy protests, which was done so in the policing act or to stop people attending demonstrations. such as the Public Order Act. And to make voting more difficult, like we saw with the Elections Act 2022, all of these pieces of legislation would be subject to a much greater standard of scrutiny. A codified constitution also doesn't have to be inflexible, like the one adopted in the US, which is the hardest constitution in the world to change. France has a codified constitution, but has changed it on many occasions. In March 2024, it became the first country in the world to include abortion as a constitutional right. The US, I think, is not the best model to compare us to because it is too entrenched. We could simply have a semi-entrenched constitution where some laws that are deemed constitutional in nature, i.e. laws relating to say rights, require supermajority votes in the House of Commons rather than a simple majority. A codified and entrenched constitution does not automatically prevent decisions from being made. Countries with codified constitutions prove just as much up for the challenge when it comes to national emergencies, demonstrating suitable flexibility. The UK was able to pass the Coronavirus Act and introduce the furlough schemes during COVID, but did France do any better or worse in its response? America introduced the CARES Act under Trump and the American Rescue Plan Act under Biden in order to deal with the economic hardships people face during this time. These two laws were effectively America's own version of furlough. With its federal system, it could introduce different COVID regimes in different places, much like the differences we see between England and Scotland. The difference in the UK is that we have unchecked executive power brought about by a lack of codification and entrenchment, which saw COVID restrictions imposed on some devolved bodies like Greater Manchester against their will. A codified constitution would better entrench the flexibility of a federal system instead of allowing a power drift back to Westminster as we've seen in recent years. Furthermore, those who advocate for the government needing to govern miss the point, a strong government is not the same as a good one, is letting the government govern, not simply another word for an elected dictatorship. The Prime Minister's role-progative, which contains those powers inherited from the monarch, needs to be defined and subject to proper oversight. Under the role-progative, the Prime Minister has sweeping powers, such as the right to call an election, a power that was restored to the Prime Minister in 2022 in the dissolution of Parliament's act that did away with fixed-term parliaments. This example again shows how it is too easy for a Prime Minister with a strong majority to claim powers for themselves by dominating the legislature and changing the unentrenched constitution to bend to their whim. An entrenched constitution would act as a break on executive power, preventing single-party initiatives such as the abolishing of the Greater London Council, by Margaret Thatcher, or the blocking of Scotland's Transgender Recognition Act by the Sunat government. Let's also focus on this idea of stable government. Are we saying that other countries with codified constitutions can't govern? Ireland is running a budget surplus. What Britain wouldn't give for that? And finally, on this point, is the UK really a bastion of stability with three Prime Ministers in a year in 2022 and umpteenth education secretaries and economic malaise under the previous Tory government, existing and extending into this Labour government? So the existing arrangements are just simply not producing stability or strong government, and they are certainly not guaranteeing rights despite the passing of the Human Rights Act. To do these things will need more entrenchment and thus we need a codified constitution. So recent constitutional reforms need to go further. Devalution needs to be extended more quickly and deeply in England to address the problem of a symmetry and poor policy delivery. The House of Lords is stained by the whiff of corruption, the stench of wrongdoing and needs democratic, fresh air breathed into it via a proportional electoral system. And the Human Rights Act can only outlast populist backlashes and draconian pieces of law by entrenching it in a fully codified constitution that would limit the power of the government, which remained too powerful at present. Okay, so I hope you enjoyed the show. If you found it useful, you know what I'm going to say. Subscribe to plus plus plus plus. For just £1.99 a month, you get access to the complete back catalogue of A-level politics show. That's right, 214 at the time of recording. Cancel anytime, deeds in the show notes. Until the next time, see ya.