The Constitution Unit Bulletin Issue 27 Monitor June 2004 After Thirty Years, the UK again faces a Referendum Tony Blair surprised everyone when he negating the need for a referendum. What announced in April that the public would be has changed to alter the Government’s consulted in a referendum over whether or stance? It is not the nature of the EU not to accept the new European constitution. constitution itself. True, some commentators The timing of the referendum is unclear, argue that the constitution does extend although it is likely that the issue will be put to European integration and involves a further the people following the next general transfer of sovereignty. In that case, a election, widely anticipated for spring or referendum would be a perfectly proper con- summer 2005. The Government will provide stitutional recourse, as with the devolution for a referendum in the Bill being presented referendums seven years ago. But if this to ratify the constitution, expected in the next argument is accepted, why has the parliamentary session. The responsibility for referendum been granted only now? And why deciding the wording of the question put to was this constitutional doctrine absent in voters will rest with ministers, although the 1986 and 1992 when the Single European Act Electoral Commission will advise on the and Maastricht Treaties were ratified, in both neutrality and intelligibility of the wording. The cases by parliament with no reference to a Commission will also be responsible for popular vote? designating, and providing public funding for, It is difficult to argue that the decision to hold the ‘yes’ and ‘no’ campaign groups. a referendum reflects principled constitu- The Prime Minister’s statement to the House tional considerations. Rather more con- of Commons provided few clues as to why a vincing explanations point to the June 2004 referendum was now being granted. We European elections, and the possibility that a might have expected some reference to the hostile House of Lords might itself have voted changed relationship between the UK and in favour of a referendum via an amendment the EU that the constitution might entail. After to the ratification Bill. Just as in the European all, the referendums in Scotland and Wales Community poll in 1975—the only other UK- in 1997 were justified on the basis that wide referendum—the decision to consult the devolution involved a transfer of sovereignty public appears primarily motivated by away from Westminster. But just last political consider-ations. autumn, the Foreign Secretary, Jack Straw, The Labour Government remains committed among other government ministers, had to referendums on the European single argued that the European constitution did not currency and on electoral reform. National affect parliamentary sovereignty, thus referendums are becoming a de facto In this issue: The Constitutional Reform Bill 2 The House of Lords: Reform Postponed 3 Stop Press: European and Local Elections 4 Devolution 5 Director: Professor Robert Hazell Access to Information 8 www.ucl.ac.uk/constitution-unit Elections and Parties 9 email [email protected] phone 020 7679 4977 Publications 11 fax 020 7679 4978 ISSN 1465–4377 convention in cases of constitutional change. of referendums across western countries is But the public are even more likely to be not at the national level, but at the local one. It engaged in this way at the local level than at is here, then, that the referendum is be- the national one. Since 2001, more than thirty coming entrenched in Britain; for national referendums have taken place at the local governments, the referendum is still a tool of level. These have almost all been on the political convenience rather than an emerg- Government’s proposals for new executive ing constitutional convention. arrangements for local councils, although * Democracy Transformed? Edited by Bruce two have been held on local tax levels. Under Cain, Russell Dalton and Susan Scarrow, the Local Government Act 2000, local Oxford University Press, 2003 (to be re- councils have been given greater powers to viewed in the next issue of The Monitor). put issues directly before their electorates. As a recent study* notes, the increased use The Constitutional Reform Bill The Government’s plans for the new government accepted some lesser recom- Supreme Court continue to be dogged by mendations, such as the need for the difficulties. The Constitutional Reform Bill Supreme Court to lay an annual report before which establishes the new Supreme Court Parliament detailing the Court’s budget and a was referred by the House of Lords in March description of the work undertaken. The to a Select Committee. The senior law lord, government also accepted that the Supreme Lord Bingham, has told the committee that it Court should be representative of all three would be intolerable to create the new court jurisdictions in the UK, with an equal sense of without having a new building, leaving the law ownership in all parts of the country. lords as squatters in their House of Lords By taking the unusual step of referring the corridor. He also rejected Middlesex Guildhall Constitutional Reform Bill to a Select as a new home because it is in the design of Committee after its Second Reading on a criminal court with tiered benches and a 8 March 2004, the House of Lords has dock, which would be difficult to alter achieved the equivalent of pre-legislative because it is a listed building. scrutiny. The Committee is chaired by Lord Lord Falconer has undertaken to amend the Richard, and has 16 members including Bill to say that the new court will not come Lords Howe, Holme and Goodhart, and into being until a building is ready. This could unusually, Lord Falconer (the Minister piloting shelve the plan for years, especially if a new the bill). The Select Committee has enabled building has to be built. Meanwhile, the Parliament to hear from outside experts and Commons Select Committee on Constitu- interested parties (in particular the judges) tional Affairs has returned to the charge, about the implications of the bill, and forced announcing a further inquiry in May into government to rethink some of its proposals practical issues relating to the Supreme in response. The pincer movement from the Court. These would include not just the Commons Select Committee will add to the search for a building, but the cost of the new pressure. Some members of the Lords court, how it would be accountable for its committee hope to salvage the office of Lord budget, how its independence would be Chancellor, but on the fundamentals the secured, and its relationship with Parliament. government is unlikely to give way. However, the plans will be changed significantly thanks The Constitutional Affairs Committee had to the scrutiny from both committees. The strongly recommended in their report in Lords Select Committee is due to report by February (HC 48) that the bill be published in 24 June 2004. The bill will need to be carried draft, to enable proper consultation on such a over at the end of the session in the autumn, big constitutional change. The government and so will not be passed until early next year. rejected the idea of a draft bill because of the delay, but in its reply in April (Cm 6150) the Robert Hazell, [email protected] 2 Monitor: Issue 27—June 2004 ISSN 1465–4377 The House of Lords: Reform Postponed Having announced in the Queen’s Speech its an 80% elected chamber failed by just three intention to legislate for House of Lords reform votes in the House of Commons in February in this parliamentary session, the Government 2003) the government could also have been unexpectedly abandoned its Bill before it was vulnerable to Commons defeat, or at least to a published. The Bill, to remove the remaining 92 sizeable backbench rebellion. hereditary peers and put the Appointments The loss of the Bill means that some of its more Commission on a statutory footing, had been laudable elements—notably the statutory expected since late 2003 and its publication requirement that the balance of appointments had been rumoured in the press on an almost to the chamber reflect vote shares at general weekly basis through January and February elections—have also been lost. Had the 2004. In the end the cabinet decided to ditch the government wished to it could have stated a proposals on 18 March. commitment to this principle on a non-statutory There were a number of reasons for this. basis, and indeed could have given greater Firstly, there were growing concerns about the powers to the non-statutory Appointments Government’s ability to get the bill through the Commission to ensure this, but it chose not to Lords, and the longer it was delayed the more do so. problematic this got. The government had been Instead attention has shifted to policy for the unable to secure an agreement with the Liberal next Labour manifesto, and the next parlia- Democrats, who remained implacably op- ment. Government ministers are increasingly posed to removing the hereditaries without a frustrated with the Lords’ interventionism, and firm promise of further reform to introduce there have been suggestions from both elections. Without their support it was unlikely Commons Leader Peter Hain and Lords to pass. The Government had already been hit Leader Baroness Amos that the chamber’s by significant defeats in the Lords, which is powers should be cut. It is hard to see, increasingly showing its muscle in its ‘semi- however, how government could win public reformed’ state. Most significantly, it was backing for a proposal to formally weaken defeated on 8 March over the Constitutional parliament, and such a bill would almost Reform Bill (see page 2), which the Lords certainly be rejected by the Lords.