Another country

May 30, 1997

Robert Hazell has spent the past two years devising ways of reforming the constitution. Lucy Hodges hears his tips for Tony Blair

For the past two years a small team of ex-civil servants in the law department at University College London has been thinking about how to realise constitutional reform. They have revisited previous attempts to reform the House of Lords and devolve power to Scotland and Wales, digging up the skeletons of past failures.

The leader of this constitution unit is Robert Hazell, formerly a Home Office civil servant. His unit has handed the Government a blueprint for how to reform the constitution.

The two most spectacular failures in constitutional reform were under the last two Labour governments - failure to deliver both devolution in the 1970s and reform of the Lords in the 1960s. Hazell thinks a new Labour government could learn from those mistakes. "We have debriefed almost everyone who is still alive who was involved in those two exercises," he says.

Unlike some experts, Hazell is not cast down by the new Government's decision to postpone freedom of information legislation with the promise of a white paper in July. It was never a first-year commitment, he emphasises. Labour had not fully thought through its priorities, allowing itself very little time to prepare the first-year legislative programme once in government. A process that normally takes four months was rushed through "inside a week'', he says. But he does expect some freedom of information to be introduced during this Parliament even if it is only putting the little-known code of practice on open government onto a statutory footing. Under this code, members of the public can ask for official information and appeal to the ombudsman if they are denied it.

It surprises constitutional experts that Labour is doing so much on the constitutional front so quickly: Scottish and Welsh referendum and devolution bills, a bill incorporating the European convention on human rights, a bill implementing the Inter-Governmental Conference on the future of European institutions and a regional development agencies bill, not to mention a referendum bill on a new strategic authority for London.

The fact that devolution has been acted upon immediately is no surprise because Labour has a long-standing commitment to do so. But it is a brave decision. In the 1970s the last Labour government got into a terrible tangle over devolution. It took three years to prepare the first devolution bill, and when the legislation reached the statute book it was voted down in referendums in Scotland and Wales. This time Labour - partly in response to a report from the constitution unit - is holding referendums before legislation. This avoids investing time which could turn out to be wasted. It also makes the legislation harder for the Lords to wreck.

In the 1970s the government was deeply divided (the Scottish secretary and the Scottish Labour party were against). The Labour party in Wales was also split. Neil Kinnock campaigned against. Today there is much greater support throughout the party for devolution. The Government's big majority will help and lessons have been learned about how to draft legislation. One of the unit's main recommendations is that the Government must base the new law on the powers reserved to Westminster not the powers devolved to Scotland and Wales.

Reform of the Lords is one item to which Prime Minister Blair is strongly committed. In his speeches on the constitution, he has waxed eloquent about the indefensible nature of the hereditary peerage. Reformers expect it to happen in the second year.

"There's nothing wrong in that," says Hazell. "They would be mad to attempt to do House of Lords reform at the same time as the devolution legislation."

Reform need begin only with a little bill containing half a dozen clauses to take away the sitting and voting rights of hereditary peers. The unit drafted a bill and it came out as five clauses. None of which means the legislation will necessarily be easy to pass. Reform of the Lords is big stuff. It's been on the agenda since 1911 when the Liberals first proposed an elected second chamber and has been revisited periodically ever since.

The Government has got to prepare the ground carefully, explaining its arguments in a white paper and showing firmness of purpose. The only argument in favour of the hereditary peerage is its independence, a fairly spurious argument anyway because so many of the 800 hereditary peers are Tory.

There are worries, however, about a chamber dependent on political patronage, which is what the Lords would be once hereditary peers had been removed. The Government will have to put a strong case for further reform of the Lords if it is to get the first stage reform through. "It needs to have a route map of how to get to the second stage," says Hazell. "If it doesn't do that, it may find it difficult to pass the first stage."

That was the fate of the last Labour government's attempt to reform the Lords in 1967-68. Richard Crossman's bill was never passed by the Commons, the reason being that MPs get nervous when they think about a second chamber being made more legitimate and effective than the Lords. Two doughty opponents of reform were Michael Foot and Enoch Powell, both Commons men. Are there MPs to take their place today? Any reform has to face the question of what the role of a second chamber is and what its powers should be. "You can see, reading the debates in 1968, how this realisation began to emerge and the government just got deeper and deeper into the mire,'' says Hazell. His unit thinks second stage reform of the Lords - deciding on what will replace the rump of appointed peers left behind - should not take place probably until a second Labour term. There are several reasons for waiting. Reform of the second chamber might give a voice to the regions, so it would be wise to wait for devolution to bed down. In addition, an elected second chamber would have to be elected on a different franchise from the Commons. But the Commons franchise may change because the Government has promised a referendum on electoral reform. So, it makes sense to wait for that too.

Whether Labour will have a referendum on electoral reform is unclear. Tony Blair has said he needs to be convinced that proportional representation is a good thing. And Jack Straw is a well-known defender of the first-past-the-post system. That may be the one constitutional issue inherited from the late Labour leader John Smith which is junked.

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