Confronting the constitution

Forgive me. This is a second consecutive column on the constitution. In mitigation, this is the big legal issue of our time. And, all three party political associations of lawyers have been in touch on the subject, two with publications. A working party of the Society of Conservative Lawyers has published Our Quasi Federal Kingdom, to which the Society of Labour Lawyers has issued a riposte.

Political debate on the constitution is unavoidable. William Hague has a working party on the subject. Labour wants a national convention. However, the issue that has gained most traction so far has been ‘English votes for English laws’. This has become shortened by its detractors, rather brilliantly, as EVEL. The Society of Labour Lawyers’ rejoinder is, for example, entitled: ‘EVEL – a half baked plan’.

The Tory lawyers’ paper has the great merit of putting a positive idea on the table and forcing others to address it. Labour’s lawyers are happy to do a demolition job but are less forthcoming on what they think should actually happen. This is profoundly unsatisfactory. In principle, English votes on English laws must be right. Of course, the devil lies in the detail. What laws are solely or mainly English? Who decides? What else needs to be done?

John Major is often quoted for his pithy observation on constitutional reform: ‘If the answer is more politicians, then you are asking the wrong question.’ He points to a double truth. There is no appetite – in England at least – for more parliaments or parliamentarians. So, one way of mirroring Scotland is closed. However, he also indicates a wider methodological truism: the question with which you begin determines its answer. In that context, opening with the passage of English laws may be just too narrow.

The coming debate needs to focus on three separable but inter-related sets of questions: how is the United Kingdom to remain united; how are we to organise our democracy; and how are values to be reflected in our constitution. English politicians should not be foolish enough to believe that the Scottish referendum was determinative. After all, the SNP is clear that it is not. There will be plenty of opportunities for Nicola Sturgeon, who will be just as wily as Alex Salmond, to maximise difficulties. It took the latter only hours to cast doubt on the devolution vow.

Problems will persist if Labour follows the Conservative party into Scottish oblivion at the next election, and multiply if an English-led government seeks to take the UK out of the European Convention on Human Rights or the EU in the face of Scottish objection.

There has to be an open debate in England, Wales, Northern Ireland and Scotland as to what should be determined federally. This is subtle and difficult. Salmond precisely argued in his second debate with Alistair Darling that his government needs independence because, although health is a devolved matter, the overall size of the budget is determined in Westminster. So it is, but this is right. UK MPs have a role in determining the overall national budget for all parts of the UK, including Scotland.

Second, the fundamental Scottish demand is for more democratic accountability. England has a higher population (53m) than California (38m) or the whole of Canada (35m): we have to find a way of handling its disproportionate size in some form of federation. And, we have an electoral system under which a crushing parliamentary majority can be obtained in England on about a third of votes. A UK-wide upper parliamentary house is made up of unelected grandees and appointees. No surprise then that we have major voter alienation.

A third of those in the UK eligible to vote did not do so in 2010 – though 90% did in the Scottish referendum. People may, at the moment, be turned against the constraints of the EU and the European Convention on Human Rights, but there is a more general democratic deficit.

Finally, we have a crisis over values. Are we really hostile to the values of the European convention? Do we really think that parliament should decide everything without constraint? Does not devolution alone demand a written constitution? The great AV Dicey himself was careful to define parliamentary sovereignty as more complex than majoritarian rule by the House of Commons. Do we really not want to be part of the EU?

It might be said that these raise such complex issues that we should decide something like EVEL first but, actually, they all hang together. We may need a debate that scares us by its full implications to get the kind of serious engagement that happened in Scotland. These big constitutional issues cannot be decided by political cliques, nor can we progress as before by default.

Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice