Nick Pearce is Professor of Public Policy and Director of the Institute for Policy Research (IPR) at the University of Bath.
In recent days, Ministers and their advisers have trailed the idea that Boris Johnson will announce the creation of a Royal Commission on the Constitution. For Conservatives of a Burkean disposition, divided over tactics and fearful of unleashing forces beyond their control, the device of a Royal Commission seems perfectly suited to managing the febrile post-Brexit territorial politics of the United Kingdom. Unwilling to grant a Section 30 order for a second referendum on Scottish independence but mindful of the centrifugal forces swirling around the union, a Royal Commission appears to offer a manageable, low risk process for constitutional reform - an alternative to set against the Constitutional Commission announced by the Labour Party and the ‘11 point plan’ for a second referendum set out by the SNP.
The UK has been here before. In the Queen’s Speech of 1968, after by-election victories for Plaid Cymru in Carmathen and for the SNP in Hamilton in 1966, and big swings towards the Welsh nationalists in Rhonda West in 1967 and Caerphilly the following year, Harold Wilson's government announced that it would consult on the creation of a Royal Commission on the Constitution. A commission was established in 1969 under the Chairmanship of Lord Crowther, a former editor of The Economist and holder of a plethora of directorships and quango posts. After Crowther’s premature death from a heart attack three years later, the commission was chaired by Lord Kilbrandon, the Scottish Law Lord.
The Kilbrandon Commission, as it subsequently became known, was one of the last clutch of ‘great and good’ Royal Commissions set up in the 20th century to investigate issues that Westminster governments were either unwilling or unable to tackle by other means (on constitutional and democratic issues, the alternative device of a Speaker’s Conference has also been used on a number of occasions, including on devolution itself in 1919). The Commission’s terms of reference were broad and vague - ‘to examine the present functions of the central legislature and government in relation to the several countries, nations and regions of the UK’ - but even after four years work, its members could not agree on how to interpret their remit, nor on what to recommend. Its analysis is generally regarded to have been weak and its arguments convoluted. Lacking consensus, a majority and a dissenting minority report were issued. Most MPs ‘greeted its publication with bafflement and even mirth’.
Is there anything, then, to learn from this experience today? Despite its relative failure, the central recommendations of the Commission’s majority report look remarkably similar to the devolution settlement enacted in the first term of the Blair government. Eight members of the commission supported an elected assembly with legislative powers for Scotland, and six members likewise supported a legislative assembly for Wales. The Callaghan government’s failure to secure some measure of devolution to Scotland and Wales, and the long hiatus of the Thatcher years, should not obscure this continuity. As Gary Wilson has argued, ‘recommendations found within the Kilbrandon Commission report were central to the devolution proposals developed during [the 1990s] and would serve as the basis for the devolution agenda implemented by the Labour government during its first term.’
Nonetheless, the Kilbrandon Commission also offers stark warnings to contemporary constitutional reformers. The commission could not agree on the place of England in a reformed union. The majority report recommended advisory councils for administrative English regions, but not direct election and legislative powers to mirror those for Wales and Scotland. The minority report argued for symmetrical devolution all round, with elected assemblies in five English regions, as well as Scotland and Wales, but each with advisory and executive powers, rather than primary legislative competences. Neither envisaged a place for England as a nation in a new constitutional settlement, concluding that a federation of four units would be so unbalanced as to be unworkable. The Commission also eschewed recommendations on Northern Ireland, and while the minority report held open the possibility of members of the devolved bodies being nominated to the House of Lords, the opportunity to recast the second chamber as a federal or quasi-federal senate, was passed over. Ditto consideration of a Written Constitution.
These are all issues that a contemporary constitutional reform process would have to consider. Yet the difficulties faced by the Kilbrandon Commission (and its predecessor 1919 Speaker’s Conference) in navigating the ‘state of the unions’ and securing agreement has led some to argue it can ‘provide little optimism for the success’ of constitutional reform in the 21st century. So is constitutional reform intractable in the United Kingdom, or are there less fatalist lessons to learn?
The first must be a question of form, rather than substance: an elite, great-and-good commission is no longer an adequate or defensible vehicle for engaging in fundamental constitutional and democratic reform processes. There is now considerable experience in the UK and around the world of deliberative citizens’ assemblies which can be convened to engage citizens of the UK’s nations directly in a Constitutional Convention. Reform should be an open, pluralist and democratic process.
Openness should also characterise the scope of a constitutional convention. The Kilbrandon Commission was based on the assumption of a unitary state, from which it did not waver. Contemporary constitutional debate cannot be so constrained, and must embrace consideration of a federal United Kingdom, with a Written Constitution to frame the allocation of powers and responsibilities of the institutions of federal, national and local levels of government. Federation in the United Kingdom is complicated by the particular political and institutional circumstances of Northern Ireland, where constitutional change is governed by the terms of the Good Friday/Belfast Agreement and overlaid with the treaty obligations of the Withdrawal Agreement Protocol. But a federal re-founding of the United Kingdom would necessarily draw in Northern Ireland in ways that further processes of asymmetric devolution would not.
Similarly, most proposals for radical constitutional reform envisage a federal second chamber, akin to those of federations elsewhere in the European Union and the Anglosphere, and unlike Kilbrandon, these wider institutional reforms must be within scope for a constitutional convention. So too must consideration of an English Parliament, difficult as that is: the default assumption that the English question can be solved through the creation of elected English regional assemblies is one that is increasingly challenged. Finally, any proposals emanating from a Constitutional Convention would undoubtedly need consent from confirmatory referendums in each of the constituent nations of the United Kingdom.
It is perfectly conceivable that the Scottish people will vote to leave the United Kingdom in the years ahead or that the people of Northern Ireland will at some point vote to unite with the Republic of Ireland in a border poll. Support for independence in Wales may also continue to rise. Any number of political scenarios could trigger major constitutional challenges to the United Kingdom. If there is one final lesson from the Kilbrandon Commission, it is that seeking to contain these processes, rather than to shape them, is ultimately futile.
All articles posted on this blog give the views of the author(s), and not the position of the IPR, nor of the University of Bath.
This blog was originally posted via the Centre on Constitutional Change on 28 January 2021. It draws on a contribution to a webinar held at the Centre for English Identity and Politics chaired by Professor John Denham, with presentations and responses from Carwyn Jones AM, former First Minister of Wales and Aberystwyth University; Professor Nicola McEwen, Centre on Constitutional Change, University of Edinburgh; and Professor Pearce.