Guy Herbert - no constitutional convention please, we're British

I'm baffled by the impossibility of getting any of our political leaders to recognise that there is a perfectly satisfactory answer to the West Lothian question, indeed the only satisfactory answer to it, and one that ensures a fair and democratic relationship between the component parts of the UK instead of risking its break-up: full devolution to legislatures and governments in all four nations (of course including England) under a fully-fledged federal constitution, with the government and parliament at Westminster becoming federal organs with limited responsibilities for the relatively few subjects not devolved. It's only impregnable British insularity that prevents our politicians from studying the successful performance of federalism in many other western democracies, and then setting about following their examples. One step along the way to this no-brainer solution would necessarily be a constitutional convention, but only after the principle and ultimate objective of a full federal system has been established.

We should always apply the test: will the change that we advocate help to keep the United Kingdom united on a democratic and durable basis, or will it risk causing its dissolution, which would be a tragedy of incalculable proportions?

PS The Ming Campbell clip includes the best argument I have ever heard for resisting any change, of any kind, ever: "change may have unintended consequences"! This from a former leader of what is supposed to be a left-of-centre reforming party. Sad.

Brian
http://www.barder.com/ephems/

Fascinating stuff.

There is a growing awareness in the population that there's very little between the political parties. There's also growing awareness that England is getting a raw deal. Eventually there will be a groundswell of opinion and recognition will be demanded.

For "Cameron will allow nothing to threaten the Union", read... "Cameron will allow nothing to threaten his place in history"

The WLQ, Barnett etc will damage the Union in the long term because it puts an intolerable pressure on it. This may not happen in the short term so Cameron is banking on the idea that he'll be long retired by the time it does. In the meantime he'll be PM of the UK because "I don't want to be the Prime Minister of England, I want to be the Prime Minister of the United Kingdom"

Sacrificing what is better for one's country, in exchange what is better for one's career is what seprates a statesman from just another politico.

I don't want a written consitution. Firstly, Prescott might be given the job of writing it, then we would really be finished, if anybody could understand it.

Secondly, they generally get filled with platitudes such as "freedom of religion" and these are the devil's own job to get rid of, even when religious nutters are on the rampage.

An English Parliament is the only answer and we all know the only reason Westminster MPs don't want one is because it would put them out of a job.

I don't want a written constitution either - but I'm not asking for that, I'm asking for a constitutional convention.

Strangely the same confusion seems to have occured in the comments over at Our Kingdom.

Obviously, if we wanted to be a federal United Kingdom, we would need to write something down somewhere - a codification describing how the federation works, where sovereignty lies, what the extent of powers are.

I'm against a 'British Bill of Rights' though. I shudder at the prospect to be perfectly honest.

An English parliament on its own would be utterly inadequate. A parliament without a government would be meaningless. A parliament and a government for England, in addition to those already operating in the other three nations, would constitute a federal system, whether people had the nous to recognise it as such or not. And you can't have a federal system without a clear definition, justiciable by a Supreme Court, of the distribution of powers within the federal system. And that definition would be a written constitution, however you choose to describe it.

Moreover it would be absolutely impossible to get through all the stages of such a major constitutional reform without at least one and more likely several constitutional conventions.

This reluctance to think beyond "an English parliament" is beyond comprehension. Open your eyes a little bit wider! Be bold!

Brian
http://www.barder.com/ephems/

Brian, I call myself an English nationalist not because I want an English Parliament (as Monbiot suggests, you only need to be a democrat to support an English parliament), I call myself an English nationalist because I believe in nation and that the people of England should be sovereign to decide how they wish to be governed (whether inside or outside the Union).

Because I am an English nationalist defined on those terms my preference is for sovereignty to lie with England/the nation/the people. Therefore I favour confederation with power ceded upwards to the British level, rather than downwards from the Crown to the national English/Scottish/Welsh level.

However, if it's federation that you're after then I agree that it all needs to be codified. I think that most English nationalists when they speak of federation, are thinking more along the lines of symetrical devolution with England as one of the units (possibly because this is the solution pushed by the CEP) - a quasi-federation with absolute sovereignty lying, theoretically, with Westminster, as it does now in respect to Scotland.

Obviously the Campaign for an English Parliament is also a campaign for English government. Otherwise we would be satisfied with 'English votes' or an English grand committee. We're not satisfied with those Westminster solutions because we want a peoples' solution to the question of England, not a politician's solution to anomalous Westminster voting privileges, and; we also want English government that can speak for England and act on England's behalf - a national voice.

I can appreciate that to a constitutionally literate observer such as yourself the demand for an English parliament may seem rather simplistic. But you shouldn't take that to mean that the people doing the demanding are themselves simple. The CEP's demand is simplistic, and perhaps appears naive, because it is a simple demand for equality within the United Kingdom - the basis of their campaign is essentially democratic rather than nationalistic.

Toque, thanks for an interesting reply.

You write:
"I favour confederation with power ceded upwards to the British level, rather than downwards from the Crown to the national English/Scottish/Welsh level."

But I'm afraid the four nations can't cede upwards to the British (i.e. federal) level powers that they don't possess. Our situation is different from that of the American and Australian States which were separate sovereign entities which voluntarily came together and agreed to cede some of their powers upwards to a new federal entity. We are starting from the other end, with an all-UK sovereign entity voluntarily ceding some powers downwards to (some of) the four nations. However, once we have a fully fledged federal system, with a negotiated, written constitution setting out the respective powers of the nations and the federal centre, with a Supreme Court authorised to interpret and enforce it, the federal centre will no longer have even the theoretical right to claw back 'devolved' powers from the nations except with their consent. So whether powers have originally been ceded upwards (which I agree would be desirable but which is impossible) or downwards won't matter in any legal or practical sense, even if it has some psychological effect.

This illustrates, though, the absolutely unavoidable need for a federal system to have a written constitution which alone can limit the power of the federal centre (which in our present semi-federal system and no written constitution is theoretically all-powerful, anyway vis-à-vis the nations).

You write:
"However, if it’s federation that you’re after then I agree that it all needs to be codified."

It's not really a question of what I'm after, nor of choice. If you favour a parliament and government for England, then ipso facto you favour a federal system for the UK (unless of course you also advocate a unilateral declaration of secession by England from the rest of the UK, which I assume you don't, and which is a completely different question from that of an English parliament). If what you want is a situation in which the four nations each have a parliament and government, and there remains an all-UK central government and parliament responsible for non-devolved subjects, then that's a federal system and it absolutely demands a written constitution. At the moment we are half-way (or you might say three-quarters of the way) into a federal constitution, which needs to be completed by a parliament and government for England and the devolution to all four nations of all internal matters, not just a selection of them. What we don't want at this stage is a written constitution that would set our half-baked, half-finished federal constitution in concrete, and make it infinitely more difficult to move on to a full federal system once agreement on its contents and details has been negotiated.

You write:
"I can appreciate that to a constitutionally literate observer such as yourself the demand for an English parliament may seem rather simplistic. But you shouldn’t take that to mean that the people doing the demanding are themselves simple. The CEP’s demand is simplistic, and perhaps appears naive, because it is a simple demand for equality within the United Kingdom - the basis of their campaign is essentially democratic rather than nationalistic."

I don't regard the advocates of an English parliament as simple, nor is the demand itself simplistic. I would just hope that those who campaign for it understand and acknowledge the extremely radical consequences of what they want -- an English government as well as a parliament (which you agree is a necessary implication), a sharp reduction in the powers and responsibilities of what would then become a federal parliament and government at Westminster, federalism for the UK, and everything that that implies. Unless you make it clear in your campaigning that these are the highly radical but necessary implications of what you are demanding, you risk (a) seeming disingenuous, because you are pretending that establishing an English parliament is all you really want, and that the process can stop there -- which it can't; and (b) depriving yourself of much the most powerful argument for an English parliament, namely that it's a necessary preliminary to a full federal system, which is the only way of removing current toxic anomalies from our existing half-baked system (such as the West Lothian Question) and of reforming the character of the relationships of the four nations to each other and to the UK as a whole, so as to make those relationships democratic, durable, and in the interests of all the peoples of the United Kingdom, not just of England. Those who are forever whining about how unfair the present system is to the poor oppressed English do no favours to their cause: the strength of their case is that it will ultimately benefit everyone in the UK, not just that it will remove an injustice to England.

Brian
http://www.barder.com/ephems/

I'm not going to say "Meet the new Levellers" because I'm not about to start pamphleteering on an end to Parliamentary sovereignty, but I don't think the concept of parliamentary sovereignty is quite as inviolable as it once was. If there is to be a progressive left-wing English movement it will almost undoubtedly be led by people referring to themselves as 'democratic republicans' who wish to see an end to parliamentary sovereignty. They may have strong appeal to an English public who have been witness to a Parliament that has failed to protect its own sovereignty (against the police and the executive) and has actively handed away powers to the devolved administrations (although it claims to retain 'absolute sovereignty') and the EU.

If the Scots decide to go it alone, in pursuit of a 'popular sovereignty', but wish to maintain a social union (or confederation) then it is entirely possible for the nations to cede power upwards to a union (or council of the isles) centre. It's an unlikely scenario, but not improbable - we are yet to fully understand what Alex Salmond means when he refers to a 'Social Union' with the Queen as Head of State.

Our elected representatives pledge to serve the Crown, not the people, not the constitution, nor any particular principle or political ideal. The Crown is nebulous, it is an idea; it is not tied to any territory, or people; it is everywhere and nowhere, in Parliament represented by the Mace. People that believe in the sovereignty of parliament are usually always unionists wedded to a certain idea of "Britain", but the territory over which the Crown exercises supreme power can contract, as with the American colonies, and as was the case in 1921 - when 'Britain' itself contracted - with the Irish sessesion (and as may be again in 2020 if the Scots leave). So the idea of Britain can change, the territory of dominion may change, but what remains constant is the authority of the Crown and the subject status of those who remain under it. The vast majority of people who describe themselves as 'unionists' - and this is true across the centuries - are people for whom the idea of the absolute supremacy of Crown in Parliament, with the English/British Parliament the epicentre from which that power radiates, is everything. It's an anglo-centric view which may have been a source of considerable pride for the English when they stood in command of a vast Empire with unchallenged dominion of the seas, but it's bugger-all use to us now.

Federations require a 'federal compact' but that is not to say that they require a fully codified constitution, bills of rights etc. The proposed 'British Bill of Rights', it seems to me, offers nothing more than the ECHR gives us already. It's primary purpose is to instill a sense of 'Britishness', and provide British Government with a mission statement which is essentially useless to the people for so long as Parliament retains absolute sovereignty.

The devolved parliament that the CEP advocates would involve no decrease in powers that the 'federal' parliament can discharge for the UK as a whole. Westminster has lost its status as the UK legislature for a significant proportion of legislation; that legislation which falls under the remit of the Scottish Parliament. Extending that loss of legislative capability to the analogous English legislation would not make any difference to its function as the UK legislature, it would just remove its English function - besides which the Crown in Parliament it would retain absolute supremecy (there is a Mace in the Scottish Parliament which signifies the Scottish Parliament's inferiority - in contradiction to the 1988 "Scottish Claim of Right").

I do believe that an English parliament will benefit everyone in the UK. If English and British functions are separated then it allows the Scots and Welsh to have equal ownership of the British bits. At present we live in an Anglo-British state. It’s this notion of England/Britain that so annoys many Scots and Welsh, who find it arrogant of the English to use what is the British anthem as the English anthem, the British Parliament as the English parliament, British identity indivisible from English identity. Both the Labour Party and the Conservative Party are infested with the Anglo-Brits (and I include anglo-centric Scots like Gordon Brown in that category). They are people who, to borrow from Bryant, “do not notice when an institution or person associated with England performs a British function. For example, it goes unremarked that the Bank of England is the central bank for all Britain, or that the Archbishop of Canterbury, the primate of the Church of England, crowns the sovereign of the United Kingdom of Great Britain and Northern Ireland. Nor do countless references to ‘England’ which should have been to ‘Britain’ grate on the English ear. Walter Bagehot’s famous The English Constitution (1964 [1867]), for example, does not strike the Anglo-British as mistitled. Similarly, it is the 900-year continuity of the parliament at Westminster – originally English, later British – that enables Rebecca Langlands (1999) to speak of the English core of the British state.”

PS

Prior to realising "the principle and ultimate objective of a full federal system" it's necessary for the English to request/demand rule by an English Parliament and an end to rule by the British parliament. If the English are content to be governed "as British" then there's not going to be any federation.

You write:
Prior to realising “the principle and ultimate objective of a full federal system” it’s necessary for the English to request/demand rule by an English Parliament and an end to rule by the British parliament.

If you really mean the last eight words, you are asking for full independence for England -- in other words, the expulsion of Scotland, Wales and N Ireland from the UK. If that's really what you are after, you can forget it. It ain't going to happen (mercifully). The British parliament (i.e. what would become the federal parliament) and its government would continue to be responsible, obviously, for all non-devolved subjects, including especially foreign affairs and defence, in respect of the whole of the UK including England. If that constitutes "rule" of England "by the British parliament" in your mind, then it's inescapable, unless (as I say) what you really want is the dissolution of the United Kingdom.

It's this kind of thing that makes those of us who believe strongly in maintaining the Union (by strengthening and democratising the relationships between the four nations and between each of the nations and the federal centre) tend to be suspicious of what the English nationalists campaigning for an English parliament (and not much else) really want. Personally I am an English nationalist, a British nationalist and BTW a European nationalist and I challenge anyone to claim that there's any conflict between them. I hope you can say the same, but I wonder if you can?

Brian
http://www.barder.com/ephems/

I'm a nationalist, not a dictator. It's not about what I want, it's about what the people want. The difference between nationalists and unionists is that nationalists argue that their nation has the unilateral right to self-determination, whereas Unionists declare that changes in territorial boundaries - or the extent of Crown authority - can be decided only by the Crown in Parliament.

I'm not a separatist, and I don't believe the people in England or Scotland want that, but I do believe that England has the right to self-determination. Self-determination includes the right to stay within the Union as much as it includes the right to leave the Union.

What I want is to be asked what I want. And until the English nation is asked what it wants then I don't think that there can be any stable settlement because one territory of the kingdom is an unknown quantity.

You make a very black and white case. The grey is the ability to self-determine in certain non-reserved areas while the Crown in Parliament retains absolute sovereignty - this is what Scotland has. The request/demand does not have to mean an end to representation in the British Parliament, but rather an end to rule by the British Parliament.

Gordon Brown, along with Alistair Darling and many other Labour and Liberal Democrat MPs all signed the "Scottish Claim of Right", a document that explicitly stated that ultimate authority in Scotland rested with the Scottish people themselves.

So why is it so offensive for the English to demand the same right?

Because the one thing that will be guaranteed to destroy the Union is the failure of the British State to acknowledge that the English have the same rights as the Scots, Welsh and Northern Irish.

That means either scrapping Devolution, or completing it. Seeing as the former does not appear to be an option, that only leaves the latter.

Incidentally, I should point out that it is the fact that so many so-called "Unionists" are not willing to concede that the English should have equal rights with the Scots, Welsh and Northern Irish that makes so many of us suspicious of their motives.

You make a rod for your own backs.

I tend to agree with Brian that setting up a devolved English parliament and government would amount to de facto federalism, whether or not it was formally known and codified as such. If the central UK parliament retained full sovereignty, as it does in relation to Scotland now, I think there would be an inevitable battle for power between the English and British parliaments, and this would lead to demands for full national sovereignty for England, which could well result in the break up of the Union.

I wrote a piece in my National Conversation for England blog today that examined the idea of an English parliament effectively evolving from the present Westminster parliament minus the MPs from the other UK nations, with the consequent need to establish a new, smaller UK parliament. I expressed the idea that all five bodies could be sovereign; but not 'independently' of one another, as is implied by the concept of the Scottish or English parliaments expressing the sovereignty of their respective nations and people. Instead, their authority would express the sovereignty of the UK state but just distributed out into their respective areas of competence, i.e. national / devolved matters and 'federal' / reserved matters.

In this piece, I expressed the view that this could be viewed as not a federal model but the completion of devolution. But it would effectively be federal, if not in name, because there would have to be some written document and foundational law that set out the understanding of how each of the parliaments reflected the sovereign power of the state as a whole. The English parliament in this scenario would be something like the sovereign UK parliament for England; but it would also fulfil the function of a national parliament elected by, speaking for, and acting on behalf of, the people of England.

Maybe this is the kind of English middle way or compromise that might just be necessary - necessary to save the Union, and necessary to give England the dignity and democratic governance it deserves as a great nation.

Brian Barder. You challenge anyone to say there is a conflict between you English, British and European nationalisms. Well fairly obviously whether there is a conflict depends on how the interests of these three entities are defined. On your definitions of their interests there won't be any conflict.

I would be interested though, to learn on what criteria you base the view that Europe is an actual or potential nation.

Jim, all I'm saying is that the kind of loyalty and sense of belonging that I feel about both England and Britain is much the same as the way I feel about being a European. For example, although I'm strongly pro-American -- but not pro-Bush -- and have lived in the US for years at a time and visited the States numerous times and have a daughter and granddaughters who are American citizens as well as still being British, have travelled widely in the States, have lots of good American friends, feel totally at home in New York City, speak fairly fluent American-English, etc. etc., I still identify much more strongly with fellow-Europeans such as people from France, Germany, Poland, Italy, Portugal and Spain than I do with Americans, even though I have spent much less time in any of their countries than I have in the US.

I see the EU as an exciting and hopeful innovation in building relationships between nation-states and developing joint institutions to further all our interests. I don't believe the EU will turn into a single sovereign state at any time in the future that's near enough to be worth envisaging, and I don't think it's useful to speculate now about what final form this unique association will eventually take, if indeed it ever stops evolving. One of its merits, as I see it, is that it is gradually eroding the intense, often violent nationalisms within the EU which have been such a curse to generations of Europeans for centuries. Yet it is fully consistent with a normal patriotic pride in one's own country (whether it be England or Britain or more likely both) as well as in the extraordinary achievements of our ancient continent, and a corresponding determination to help remedy its defects.

I don't think it matters whether you see Europe as akin to a nation, or potentially so. We know what it is even if its novelty makes definition difficult. Pride in it and loyalty to it are fully consistent with pride in and loyalty to Britain, England, London, Hackney, Yorkshire, Wigan, Ebbw Vale or wherever you feel those strong attachments. That's all that needs to be said.

Brian
http://www.barder.com/ephems/

Brian. I too feel affection and respect for other European nations, but they are just that - other nations. My regard for them falls well short of anything that could reasonably called nationalism.

You, on the other hand identify with them more strongly, perhaps in the way that I identify with the old Commonwealth (common language, common Law, common heritage and common military graveyards).

The majority of you fellow English (and perhaps also British) countrymen do not appear to share your view. These days they probably don't share mine either, but the Commonwealth is no longer a live project, so it tends not to be an issue. The European ratchet continues its slow but inexorable progress, however. You may see no conflict now, but sooner or later I rather think that you will have to choose.

What powers should Westminster and the Cabinet have; should they be absolute?

I would say no.

Guy Herbert and the Conservatives would say, in theory at least, yes.

No, I wouldn't. You have misunderstood me about as much as it is possible to do.

I don't know what Mr Cameron wants, but I would like a severe limit on government power, probably more limit than most constitutional wonks would like. (The bien pensant usually have lots of ideas about what nice people could do with power.) What I am pointing out is that you can't get that by conferring with likeminded worthies. You can only do so by grasping some levers of power and making it so.

The point is that *in practice* the PM commanding a majority does have absolute power, not that he should do so in theory.

I don't think I have misunderstood you, Guy.

If you don't believe in the absolute sovereignty of Parliament, then you won't have any objection to a constitutional convention so that we - the people - can have a say in how we wish to be governed (especially as Westminster has devolved powers to the peripheries in a way that has disadvantaged the English voter).

My point is that, on important constitutional matters which have a bearing on the way we are governed, Parliament (the electoral college that sustains the Executive) should not act as an elective dictatorship. Parliament should not bind its successors, and nor should it bind the electorate to constitutional settlements that do not command public support.

You have misunderstood. And how.

It doesn't matter what I think the constitution should be for my point, which was about the practicality of the activity.

A 'constitutional convention' of people who have no power put their new dispensation into practice is a diversion of time and energy into nothingness. It is worse than useless as a defence of liberty, and is no contribution to constitutional change either. You seem to be under the impression that the label 'constitutional convention' has some illucutionary function, but in fact you might just as well all go to a Star Trek convention to get the same constitutional and political effect. The latter would be less pernicious because it would be obvious to others that it was a fantasy hobby, and it wouldn't draw in naive people with energy who might otherwise make a contribution to genuine change.

Guy, it's time for the people to do the talking, and for the politicians to do some listening. We've had years of piecemeal changes that have weakened parliament, our faith in politics and, dare I say it, our sense of "Britishness".

When I say 'constitutional convention' I don't mean a group of politicians and lawyers sitting down to re-write the British constitution. I'm thinking more along the lines of a 'national conversation', something like the SCC which came up with recommendations for better governance - some of which were implemented.

Liberty resides in the spirit of the people, it's the people that must take responsibility for their liberty and collective sovereignty - without that collective understanding then everything is nothingness. Government can give us 'rights' (and 'responsibilities' if Brown and Straw have their way) but it cannot give us liberty.

The reason we may as well go to a Star Trek convention is because people like you are unwilling to put their faith in the people. I expect the Tories will win the next election and we'll see some more piecemeal tinkering: Westminster solutions to popular constitutional questions. And politicians such as yourself will wonder why the public are so cynical. Some form of English Votes on English Laws be heralded as the answer to 'The English Question' when, in fact, it is only an answer to the West Lothian Question which concerns voting privileges in the Commons that at present disadvantage the Tory Party. It is not about improving the governance of England. The English won't be asked how they wish to be governed and there won't be any public debate or general understanding of the issue. The Telegraph might commission YouGov to do a survey, but as IPSOS Mori discovered in 2008 only 48% of the general public claim to understand the issue of Scottish MPs voting privileges anyway. The Conservatives have never commissioned any survey into public support or understanding of the English Question, nor has the Labour Party, and neither has the Department of Constitutional Affairs (now the Ministry of Justice) - they all just presume to know best. So the Tories will form the next government and Parliament will be gerrymandered back the other way. Labour will moan, the Tory backbenchers will roar in delight, and the public will go back to sleep as the Westminster pantomime continues.

And the liberty to have our say, not in the Government we elect, but in the manner of our governance, will have been ridden over rough-shod in the name of party politics and constitutional one-upmanship.

I appreciate that you want Westminster solutions to constitutional questions - that's the self-justification of the Westminster Village. However, if you believe in the strength of your own arguments then why not initiate a national conversation on democracy, governance and liberty? Why not advocate a new Royal Commission on the Constitution? Why not advocate a referendum on the outcome?

I don't think that a 'constitutional convention' is some magic tonic, or that anything can come of it without the support of the parliamentary parties. But I do think that it would have a legitimising effect. Equally it can act as a restraint on bad government. Westminster can be seen to be more responsive to the public mood, it can be seen to be listening to and engaging with the people. It can also only serve to advance the constitutional literacy of the public which is at a low ebb at the moment, and it's that illiteracy that has contributed to Labour's ability to decrease our liberty and take a wrecker's ball to our constitution.

I appreciate that as a politician it's entirely probale that the only legitimacy that you're interested in is the legitimacy of the votes which give you five years to do practically whatever you want. And I expect that Cameron will feel that he has all the authority he needs to do whatever he wants so long as he has the support of the Parliamentary party, which will be put there at the behest of about 35% of the voting public. In that case good luck to you and good luck to the people, we'll need it.

I met you once at a round-table event on the English Question with Anthony Barnett and Robert Hazell, amongst others. You seem like a decent chap with good intentions but I cannot agree with you that the only way to enhance our liberty is by "grasping some levers of power and making it so". Grasping the imagination of the people is equally important, if not more so. Politicians cannot do it on their own, and no disrespect to you but I wouldn't trust them to do it on their own - you know what they say about power!

im getting Fed Up with English People Yapping On About Not Having a Parliament wen ya do its Called Westminster {we dont want it}
im from the North Of Ireland and im a Republican
and for anyone to say to say to me you should feal britishness im not British One Bit i feal Irish Irish to the Bone. and i dont appreciate any Foreign Monach or Parliament trying to Rule over us. we will not Surrender to it we havint in Hundreds of Years and we are Not Gonna Start Now! So Westminster and the Queen Can Get The Fuck Out of Ireland, and Leave us Alone.

I'm fed up with dyslexic Irish people.

Especially dyslexic Irish Republicans who have no reason to read this blog. Don't read it mate, then you won't get fed up. If you think Westminster is the English Parliament you obviously don't understand the issue anyway.