On May 5 the British constitution faces a potential tsunami. If electors succumb to boredom, apathy and ignorance, and fail to tick the box against the Alternative Vote in the forthcoming referendum, the consequence will be the virtual destruction of the Westminster model of democracy. The political institutions which have served the country so well for many generations have already come under a succession of attacks which have proved all the more effective and dangerous for being mounted by methods of guerrilla warfare rather than frontal assault.
The technicalities of the Alternative Vote hardly matter. There is, in any case, a whole family of voting methods called AV. They share the characteristic of being rare and complex. The key political reality is that the form of AV being presented to the UK electorate will, if accepted, make coalition government the norm. It will make it extremely hard to remove Nick Clegg and the Liberal Democrats. AV will give the third party an extra 25 seats. Unless there is a huge imbalance of support for the two main parties, the Liberal Democrats will be able to choose between a deal with the Tories or a deal with Labour.
If the Liberal Democrats gain power within the current Coalition government as a result of success in obtaining AV, they will then use their increased strength to argue for other constitutional changes designed to consolidate their strength even further.
There is a simmering battle between Conservatives and Liberal Democrats within the government over the proposed reforms of the House of Lords. If a reformed House of Lords is largely or completely elected, and if — as already agreed between the two parties of the Coalition — such elections are held under a system of proportional representation, the Liberal Democrats will then be able to become the pivot of power in the Upper House. To limit the damage, it will be in the Conservative interest to reduce the role of the Lords and in the Liberal Democrat interest to extend it.
If the Liberal Democrats consolidate their veto role over British politics, they will be able to block policies favoured by a majority of electors almost permanently. In particular, it will be hard to contain the successive losses of sovereignty to the European Union.
How have things come to this sad and dangerous pass? Why is it possible to introduce major changes to the UK system of government without full public discussion and without the clear majorities in favour of change required for constitutional amendments in most other countries?
One of the most effective undercover agents of constitutional revolution is a small lobby of civil servants, headed by the Cabinet Secretary Sir Gus O’Donnell and academics and journalists such as Robert Hazell of UCL, and Peter Riddell, formerly political editor of The Times. Their project is being significantly helped by the apparently bottomless pockets of the Labour peer David Sainsbury, a minister in Tony Blair’s government, who has so far sunk £15 million into the enterprise via the think-tank, the Institute for Government. Another key player is the Constitution Unit at UCL, also funded in its early days by a Sainsbury-backed trust.
O’Donnell is known throughout Whitehall by his initials — GOD. One might call his reform group the GOD Squad.
The GOD Squad’s effectiveness has stemmed from their “below the radar” character. The core objective of most of them is to destroy Britain’s two-party system. This is something in the obvious interests of the Liberal Democrats, though some centrist politicians in each of the main parties have lent their support. The arrangements agreed for the Coalition government provide the opportunity for the Liberal Democrats to drive forward further changes which may radically alter the British political system in their favour. Vital components of the Civil Service and other parts of the Establishment have had close links with constitutional reform lobbies; and Civil Service action helped to introduce innovations which significantly assisted the Liberal Democrats in the inter-party negotiations after last year’s general election.
A prime example of the persistent stealth attacks on the British constitution was the launch by O’Donnell in February 2010 of a preliminary chapter of a so-called Cabinet Manual. This was rushed out in anticipation of the forthcoming general election. The full draft was published months later in December 2010. Its legitimacy has been the subject of unusual criticism within a series of parliamentary select committees.
The manual is hardly a subject to pump adrenalin. Yet its very obscurity holds the key to its significance. In setting out a summary of existing constitutional practices, it arguably infiltrates a change in the conventions concerning the resignation of the Prime Minister which, if accepted, will lead Britain further to abandon the Westminster model in favour of a Continental European one. Even in its preliminary form, the Cabinet Manual arguably influenced the structure of negotiations between the political parties after the 2010 general elections and helped the Liberal Democrats achieve their key aim: the AV referendum.
My case is that the manual is a significant feature of an accumulation of reforms which are destroying the British constitution.
In countries where the fundamental rules of politics are contained in a single constitutional document, it frequently falls to judges to decide whether laws enacted by the legislature or actions of the executive conform to the constitution. Constitutions thus give authority to judges, who themselves are unelected and who may be unaccountable. Traditionally, the UK has limited the role of the judiciary over fundamental political matters. The system of parliamentary sovereignty is fundamental to the British political order. Constitutional measures have the status of ordinary laws which may be amended or abolished by a bare majority in each chamber of Parliament.
Thus, the monumental decision taken by the House of Commons in 1972 that the UK should become a member of the European Economic Community (subsequently the European Union) was taken by a threadbare majority. The referendum that followed too was decided by simple majority.
The achilles heel of the traditional UK constitution is that it contains no inbuilt protection against casual, surreptitious reform.
The masterly 2009 book by Vernon Bogdanor, The New British Constitution, set out the overall consequences for British political life of a series of reforms, each seemingly innocent and desirable but productive of a systematic assault on the traditional British constitution and on parliamentary sovereignty. I fully agree with him about the importance of the changes and have to admit that I failed to appreciate their likely impact when they were being introduced. Where I part company with him and with his fellow constitutional reformers is that I feel the new order is dangerous and undesirable and must be fought with vigour.
Bogdanor identifies British entry into Europe, devolution and the Human Rights Act 1998 as key elements of a much larger programme of changes. The remarkable feature of the constitutional revolution is the fact that obscure but determined lobby groups, together with sympathetic civil servants, have been able to wield so much influence.
Two bodies played key roles behind the scenes in the run-up to the 2010 general election: the Constitution Unit at UCL and the Institute for Government, a grand new creation with headquarters in the Privy Council offices near the Mall. Both had unusually close access to O’Donnell, the Cabinet Secretary, and to the staff of the Constitution Unit within the Ministry of Justice.
The Constitution Unit at UCL was founded in 1995 by a former civil servant at the Home Office, Robert Hazell. With money from several funders including the Ministry of Justice and the Gatsby Charitable Foundation, (a creation of Lord (David) Sainsbury, the billionaire who successively bankrolled the SDP and New Labour) Hazell created a leading institution whose influence he justifiably celebrates on its website. The Unit was behind several of the reforms introduced after 1997 by the New Labour ministry, including devolution and the Human Rights Act 1998. When Labour failed to accept Lord (Roy) Jenkins’s proposals for electoral reform, the Unit set up its own “commission” to keep the issue alive. Nick Clegg was a prominent member.
Hazell developed close connections with the Department for Constitutional Affairs, created by New Labour in 2003. It has now developed into the Ministry of Justice. Hazell wrote a book with one of its main officials. There was a circulation of staff between the Civil Service and his Unit. Hazell’s Unit has raised some £3 million; Sainsbury committed £15 million in 2008 to the Institute for Government.
Both organisations, of course, are non-partisan and have taken all the usual measures to comply with the rules pertaining to educational and charitable bodies. Though prominent politicians from all three parties are associated with them, it is realistic to comment that their main thrust is to promote the Liberal Democrat vision of a polity in which coalition governments are the norm, the dominance of Conservatives and Labour is destroyed and the role of experts and civil servants increases.
In 2009, as the time for a general election approached and the Tory lead in the polls declined, the attractive possibility of a hung parliament excited the reformers. If the Liberal Democrats held the balance of power, this could provide the opportunity to force one or other of them to agree to electoral reform, which could transform their fortunes.
Through 2009, Hazell worked with the Institute for Government to produce a report Making Minority Government Work. A feature of the study was the personal contact of the lead authors with the Cabinet Secretary. At the same time, Peter Riddell, the highly respected assistant editor of The Times, was also associated with the Institute’s work. Before the election, Riddell divided his time between journalism and employment at the Institute for Government. He left The Times after the 2010 election to work there full-time.
By the summer of 2009, the Institute for Government and Constitution Unit teams were meeting with O’Donnell and other officials. In October and November 2009, Riddell and Hazell were the lead authors of two reports on transitions and on minority governments published by the Institute for Government.
Around the same time, Ditchley Park, a secluded country house near Oxford, provided the setting for an important gathering at which they rolled out their findings. During the Second World War, Churchill had repaired to Ditchley at weekends when a full moon made Chequers too tempting a target for the Luftwaffe. In recent years, it has been a gathering place for high-level Anglo-American and other conferences. The stated purpose of the meeting of November 5-7, 2009, was to compare governmental transitions in the UK and the USA. The innocent title was “Managing the machinery of government in periods of change.” The presence of the Queen’s private secretary, the permanent secretary of the Ministry of Justice, Conservative politicians, later to be the most closely associated with the post-2010 coalition government, and carefully selected constitutional experts indicated that there might be an additional agenda. The Institute for Government was strongly represented.
During the Ditchley gathering, a “syndicate” led by Hazell discussed what were the correct constitutional procedures for forming a new government in the event of a hung parliament.
In January 2010, the Ministry of Justice sponsored another country house conference on constitutional issues, this time at Wilton Park in Sussex.
On February 16, the Cabinet Secretary finalised the proposals for handling a political transition after a hung election at a sandwich lunch with the inner core of favoured academic experts: Hazell, Bogdanor, Peter Hennessy, professor of contemporary British history at Queen Mary, University of London, and Rodney Brazier, professor of constitutional law at Manchester University.
Though the group purported to base their findings on precedent, their proposals put a novel spin on existing constitutional conventions which effectively made it harder for the Conservatives to take office if they failed to win an outright majority of seats in the coming general election.
The next step was to arrange a rapid meeting before a select committee of the House of Commons to advertise and legitimate their proposed scheme. The senior Liberal Democrat, Alan Beith, agreed to a hearing the following week before the Justice Committee, which he chaired. The normal procedure for evidence before a select committee was abandoned. There was no time to recruit evidence from academics who were not part of O’Donnell’s team or who were likely to present contrary opinions. Inevitably, the session held on February 24 was completely one-sided.
O’Donnell’s evidence was unprecedented. This appears to have been the first time that a serving head of the Civil Service has ever presented views in public and in real time on the political rules of the game concerning the resignation and appointment of the Prime Minister. O’Donnell himself called his appearance before the committee a very significant event. Though intended to clarify the position, his statement gave an interpretation that struck some Tory journalists as partisan. Undoubtedly for the best of motives, the Cabinet Secretary exposed himself to charges of political interference by his obvious keenness towards coalition government.
O’Donnell produced before the committee a preliminary chapter of the Cabinet Manual dealing with constitutional procedures following a general election. The manual rightly pointed out that the incumbent Prime Minister, Gordon Brown, would be entitled to remain in office if he failed to gain an overall parliamentary majority until he suffered defeat in the new House of Commons.
But O’Donnell went further in his oral evidence. Not only would Brown have a right to remain in Downing Street if the coming general election produced no overall majority for a single party, it would be his responsibility to remain in post until it became clear which party or set of parties could form the new government. In other words, the incumbent Prime Minister was to remain in Downing Street as a “caretaker” while the different parties carried out a series of coalition talks on the Continental European model. Since the idea of copying European institutions would be unpopular with many, O’Donnell recommended copying New Zealand, a Commonwealth country which had abandoned first-past-the-post and become much like a multi-party, West European polity. The Cabinet Secretary announced this novel doctrine even though the Cabinet had not given its approval. Nor did it stem from the practice following earlier inconclusive elections.
In its studies of desirable procedures for governmental transitions, the Institute for Government gave two main reasons — both bogus — to support the Cabinet Secretary’s proposals. The outgoing Prime Minister should remain in office while the rival parties hammered out an agreement, first, because the Queen would thereby escape the risk of being drawn into party politics, and second, because there needed to be governmental continuity. The incumbent needed to remain in place on a caretaker basis while coalition negotiations (which could be prolonged) ensued.
In reality, the principal effect of the proposed arrangement would be party political. If Gordon Brown remained at Number 10 following an electoral defeat while Nick Clegg conducted coalition negotiations with the Tories, the Liberal Democrats could play the two main parties off against one other in an auction. They could gain additional concessions, crucially a Conservative commitment to a referendum on electoral reform, if Gordon Brown was still waiting in the wings.
This “auction” method would be new to British politics and would depend on persuading Brown that, even if he had been defeated and even if his party had no realistic prospect of being part of a new coalition government, it was his duty to postpone resigning while coalition negotiations took place between the other parties.
A new constitutional convention to this effect would obviously benefit the third party. Thus, far from removing the Queen from party politics, the pressure on her private secretary, Sir Christopher Geidt, to agree to such an arrangement effectively embroiled the monarch in a partisan innovation. As far as the other argument — governmental continuity —was concerned, this has been far more effectively assured by the Westminster model than by the Continental system. In the latter, coalition negotiations sometimes last for months with caretaker administrations being poor substitutes for the real thing.
In subsequent evidence before a parliamentary select committee, one of the Liberal Democrats’ main coalition negotiators, David Laws, made no bones about his party’s preference for the auction method of governmental formation: “We would have been mad not to because it would have weakened our negotiating position, in terms of delivering as many of our policies as possible.”
By persuading Gordon Brown to remain in Downing Street even when the realistic prospects of a coalition between the Liberal Democrats and Labour were remote, the Liberal Democrats were able to manoeuvre the Tories into agreeing a referendum on the Alternative Vote, something they had so far refused to concede. The Conservatives believed, wrongly, that Labour had offered AV to the Liberal Democrats without a referendum. David Laws admitted with notable euphemism that “there was some mangling across the parties” and “confusion” about what Labour had in fact offered the Liberal Democrats.
So, is it realistic to conclude that Nick Clegg became Deputy Prime Minister as a result of the propaganda emanating from the Cabinet Secretary and from his academic advisers about the constitutional need for inter-party coalition negotiations, following a hung election? Close observers such as the Conservative academic Lord Norton of Louth have argued that the personal chemistry between David Cameron and Clegg together with the electoral arithmetic were the most important factors in producing the coalition agreement. This may well be the case. Nevertheless, the impact of the Cabinet Secretary’s pre-election statements cannot be discounted. They effectively authorised the constitutional reformers to manage public expectations, to “educate” the media to love coalitions and to pressure Gordon Brown to postpone the time of his resignation.
Only days before the May 2010 poll, Robert Hazell wrote in the Mail on Sunday that in the event of a hung parliament in which Gordon Brown received considerably fewer seats than the Conservatives, Brown would have a “duty to stay in office until it becomes clear which party or combination of parties can command the most support in the new Parliament”. He then went even further: “The Queen would not wish to accept his resignation until it was clear who could command confidence in his place.” For a British monarch to refuse to permit a Prime Minister to resign would be unprecedented in modern times and no justification for this view has subsequently been given. In the political context of the 2010 election, the statement was clearly designed to put pressure on Brown and his advisers to accept the auction method.
In another press article just before the election, Hazell exchanged the role of constitutional expert for that of Clegg’s political advocate. The piece, in the Guardian of April 26, was headlined: “A memo to Nick Clegg: In a hung parliament the Lib Dems could at last end the two-party system. So, Nick, here’s what you should do.” The key was to “conduct simultaneous negotiations with both parties, to see which party is willing to offer the better deal.” At the same time he was to “avoid being seen as unprincipled.”
There are many conclusions to be drawn from this story. Here are just three.
First, the study of the British constitution cannot safely be left to those who wish to undermine the traditional Westminster model. It is especially important because responsibility for constitutional affairs under the Coalition government is in the hands of Nick Clegg. Reform of the system to the advantage of the third party is logically his strategic aim, even if the price to be paid for this is compromise with the Conservatives on matters of economic and social policy.
Second, the Westminster constitution needs defending not only from academic reformers but also from civil servants who often share their opinions.
Third, when it comes to debates about the constitution, the traditionalists are hopelessly outgunned in financial terms. While the Liberal Democrats lag behind the two main parties in terms of party funding, their allied interest groups are far better endowed. Lord Sainsbury’s £15 million to the Institute for Government comes on top of multi-million endowments from the Joseph Rowntree Reform Trust, the Electoral Reform Society and Unlock Democracy (which benefits from the leftover funds of the former Communist Party of Great Britain).
The great danger of the coming AV referendum is that the adoption of this voting system could prove the jewel in the reformers’ crown. However, if there is a “No” vote, this may severely slow their bandwagon.
The reason for wishing to preserve parliamentary sovereignty in the UK and to reject the coalitionism of Continental European politics is not a reflection of narrow nationalism but of a support for the basic tenets of democracy. Grand ideals of internationalism are often hard to reconcile with people power. International institutions tend to be wasteful and unaccountable projects of elites.
As for electoral systems which produce coalition governments on the Continental European model, they have serious disadvantages. They enable relatively small parties to gain disproportionate influence in the formation of governments, and they make elections less important. In the UK, the first-past-the-post system makes it possible for the voter to remove an unpopular incumbent. On the continent, elections much more rarely have this effect. What counts is the post-election bargaining and jockeying between party leaders and bureaucrats. The British system must not be casually abandoned.