In the statement of its Draft Legislative Programme (DLP) presented to the House of Commons in May 2008, the UK government appeared to be back-pedalling on some of the more ‘Britological’ (Britishness-obsessed) aspects of its constitutional-reform agenda, also known under the rubric of ‘Governance of Britain’. The actual constitutional-reform measures proposed were somewhat tame: reform of the role of the Attorney General; giving Parliament more of a say in ratifying treaties and approving the deployment of the Armed Forces in wars; allowing citizens to demonstrate in Parliament Square without notifying their intentions in advance to the police, etc.
With regard to the British Bill of Rights and Responsibilities, the only mention was that the government would “consult on a Bill of Rights and Responsibilities, to give people in the UK a clear idea of what we can expect from public authorities and from each other, and a framework for giving effect to our common values”. Note the surprising omission of the words ‘British’ and ‘Britain’ from this statement: just ‘Bill of Rights and Responsibilities’, not ‘British Bill’; ‘people in the UK’ not ‘British people’; ‘common values’ not ‘common British values’. And as for the previously proposed formal Statement of British Values, there was no reference to it in the DLP at all.
I’ve suggested before that this apparent abandonment – or at the very least, softening – of the Britishness message demonstrates that New Labour has realised that it has alienated the English electorate, whose support it will need if it is to have any chance of clinging on to power at the next general election. The DLP statement came in the aftermath of Labour’s disastrous showing in the English and Welsh local elections, and before its similar mauling in the Crewe and Nantwich by-election; and the dropping of references to Britishness is consistent with other voices in the Labour Party reacting to these setbacks, which have urged the party to address the concerns of Middle England, as reflected by the Crewe and Nantwich result. Could this mean that the Labour Party will actually start formulating policies that are explicitly articulated as being for England; i.e. that they’ll openly acknowledge that their policies in areas such as health, education and planning, which they’ve previously tried to pass of as relating to ‘Britain’, in fact extend largely to England only?
If you look at the actual text of the DLP statement, you could come to the conclusion that they’ve already started to do so, without of course signalling the fact in a blaze of publicity. For a document named ‘Preparing Britain for the future’, one of whose title pages carries the Governance of Britain logo, there are surprisingly few references to ‘Britain’. Apart from the inevitable reference in the foreword by Gordon Brown and Harriet Harman, most of the mentions of ‘Britain’ occur in the context of proposed legislation that relates to the UK as a whole, e.g. the Climate Change Bill (p. 12); Citizenship, Immigration and Borders Bill (p. 20); and the Constitutional Renewal Bill itself (p. 64), etc. However, the number of references to ‘Britain’ or ‘British’ adds up to only 17 throughout the 87-page document.
By a reversal of the normal pattern, the number of references to ‘England’ or ‘English’ (54) is over three-times that of references to Britain / British. Most of these mentions relate explicitly to the territorial ‘extent’ of the proposed legislation, i.e. which UK country or countries they are relevant to. In fact, chapter 3 of the statement, summarising all the proposed bills, contains an indication of the territorial extent of each of them. When you read these passages, you realise just what a mess the devolution settlement is and how much of a very British – or should that be English? – muddle it has made of the legislative process as different parts of the same bills relate to different combinations of the UK nations. Take the Education and Skills Bill: “Some parts of the Bill would extend to the whole of the United Kingdom. Other parts would extend to England only, England and Wales only, or England, Wales and Northern Ireland only”. The summaries don’t make it clear which bits relate to which countries, however.
It’s this jumbled state of affairs that has led English Justice Secretary Jack Straw – the government’s legalistic rottweiler in a manger – to argue against the proposal for English votes on English laws in the House of Commons, on the basis that this would result in a hopelessly complex situation in which different combinations of MPs would be entitled to vote on bills sometimes on a clause-by-clause basis. But for me, the obvious conclusion to draw from this is that such complexity exists already – as evidenced by the DLP itself – and that the most rational solution (and one that would make the governance of Britain as a whole much more transparent to its citizens) would be to make a clear divide – consistent for all the UK nations – between areas of UK-wide governance and nation-specific governance. Then there would be absolutely no ambiguity about which countries the UK government’s legislative programme related to since it would be to all of them without exception; any other policies or laws would be the business of the devolved or federal governments of England, Scotland, Wales and Northern Ireland (and, potentially, Cornwall).
Interestingly, the DLP statement’s references to bills’ territorial extent never include the word ‘Britain’, even when that territorial extent is Great Britain: England, Scotland and Wales. See, for example, the new Equality Bill: “The Bill would extend to England and Wales, and to Scotland. The subject matter of equal opportunities is reserved to the UK, with certain exceptions”. So why not just say ‘Great Britain’ if that’s effectively what you mean? The problem with doing so is twofold, it seems to me: 1) it would involve a ‘confusion’ between, on the one hand, ‘Britain’ as inappropriately used by the DLP document to invoke a unitary Nation of Britain whose formal legal personality is the UK and, on the other hand, ‘Great Britain’ in the technically correct sense as the narrower Union of England (and Wales) with Scotland; 2) ‘Britain’ itself does not have any formal legal status or personality: UK laws are actually made – incorporated into statute – as laws of England and Wales (or now, post-devolution, often of England and Wales separately), of Scotland or of Northern Ireland. Hence the statement of territorial extent, in so far as it refers to legal statute, has to list ‘England and Wales’ and ‘Scotland’ separately.
What this means, in effect, is that there is no such thing as governance of Britain ‘as such’: Britain does not exist as a legal entity over which governance is exercised in a unitary manner. In matters in which the UK government’s remit still extends to all the UK countries, it would perhaps be legitimate to refer to ‘UK governance’. But even in these areas, this governance is given formal expression in the shape of separate legislation for each of the countries. This was the case before devolution. But what devolution has brought is far more complexity regarding which bits of the legislation of each country are the work of which parliamentary body. In other words, whereas there has never been a consistent, unitary body of ‘British laws’, and hence British governance, now those different bodies of legislation are also put together via an inconsistent and, to an outsider, apparently randomly varying combination of national parliamentary processes.
Except in England, that is. The DLP statement contains a striking acknowledgement of the one truly consistent territorial extent for all the proposed legislation: “All bills would apply to England. Bills that make provisions in reserved areas (and excepted matters in Northern Ireland) will apply to the entire United Kingdom. In many cases, a bill may also apply in part to a devolved matter in Scotland, Wales and Northern Ireland. In other cases, the exact extent may not yet be known and discussions with the devolved administrations may still be continuing. The Government remains committed to respecting the devolution settlements” [my emphases]. Oh Gawd! Not even the government knows what the exact territorial extent of some parts of some bills is – no wonder its citizens can’t make head nor tail of it. But the one common denominator is that everything applies to England. Which makes me think that you could perhaps re-configure the usual way of looking at the uneven devolution settlement: not so much a case of England having no distinct status separate from the UK – such a status having been conferred, to a relative extent, on Scotland, Wales and Northern Ireland through devolution; but rather that the only practical, real instance of a continuing unitary UK is England, as this is the only part of the UK to which the government’s legislative programme applies without exception or reserve, as it were.
If, then, the only united part of the kingdom is England, perhaps we ought to think of the United Kingdom as in fact the Kingdom of England. On this view, Scottish, Welsh and Northern Irish devolution is the beginning of a process through which these once independent countries or parts of countries are slowly reasserting their independence not from the UK – even less so, from Britain – but from England. Maybe this is the ultimate reason why, post-devolution, it became so imperative for the ‘British’ establishment to avoid referring to England at all costs, even when the territorial extent of its actions was so often limited to England alone: it couldn’t allow the deadly, taboo secret to escape that a unitary ‘Britain’ had never existed in the full legal sense, and certainly existed even less now; but that what the establishment had tried since 1707 to pass off as a unitary Britain had always in fact been the English state in all but name. Hence the fact – and forgive the pun – that the New Labour government could never ‘state England’.
If this is the case, it would go a long way towards explaining the profound identification between ‘England’ and ‘Britain’ that still paralyses so much of the debate about what I would prefer to call the separate but related futures of the British nations, as opposed to the ‘Britain of the future’ referenced by the DLP. This document should more rightly be considered as a legislative programme for England, parts of which, to varying degrees, also extend to Scotland, Wales and Northern Ireland. The frequency of references to ‘England’ within the DLP document is in effect an acknowledgement of this fact. But this is still a long way from the sort of change in consciousness on the part of Parliament that would involve it realising that it is really the English, not British, Parliament; and that it needs not so much to ‘devolve’ power to an English parliament but to split into separate England-only and UK-wide bodies.
Only in this way can there be parliaments that are properly accountable to each of the UK nations, along with a true UK parliament, worthy of the name, that represents all of the UK nations equally rather than being what it has been historically and is so even more now: a right-old English muddle between England and ‘Britain’.
PS. Just as a footnote to the above post, there’s an interesting video of Jack Straw and the Human Rights Minister, Michael Wills (also responsible for the Statement of British Values), being questioned by the Parliamentary Joint Committee on Human Rights in May (after the publication of the DLP) on the British Bill of Rights and Responsibilities. This is a very long video, but I’d recommend the bit roughly between the 26th and 29th minute, where one MP (I didn’t catch who he was) is questioning the ministers precisely on the ‘British’ aspects of the Bill of Rights and the proposed Statement of Values. Specifically, he pulls JS up on the wording in the DLP that refers to the Bill of Rights and the fact that it refers to the UK rather than to Britain / British. JS’s answer is revealingly faltering on this point, and the minister makes it explicitly clear that what he refers to as this ‘drafting issue’ precisely does relate to the ambiguities and uncertainties around the differing responsibilities of the devolved administrations in human rights-related matters.
Hence, it may not be possible to come up with a ‘British’ Bill of Rights and Responsibilities, in the proper legal sense, because there is no consistent unitary manner in which it could be applied and implemented across all the UK nations. So the confusions and complexities about differential UK governance prevail even in the human-rights area, which is supposed to be one in which the competence of the UK government extends in a unitary fashion across the UK.
One way of putting this problem is that, while rights might be considered universal – and hence applicable without variance across all three / four UK jurisdictions – responsibilities relate more to the social and economic aspects that the government is seeking to build into a putative Bill of Rights and Responsibilities; i.e. responsibilities that citizens have to one another, horizontally as it were, as members of society and as persons that have at least a moral duty (what Jack Straw refers to as a ‘non-justiciable’ responsibility) to look after each other economically (as in parents looking after children, or family looking after sick or elderly relatives). These aspects of the question, as Michael Wills’ comments immediately following the section I’ve referred to make plain, relate much more to the values of society: specifically, from the government’s perspective, the common British values that should then feed into and inform a distinctively British Bill of Rights and Responsibilities, and a correlative Statement of British Values.
But the problem for the government is that social and, to an extent, economic policies (insofar as public expenditure in Scotland and Wales, for instance, is an expression of those administrations’ economic priorities as much as their social policies) are now to a large extent the domain of the devolved administrations; and, by the same token, where they differ from English-UK policies, they are a reflection of different values among the different UK nations (although English values as such cannot be said to be reflected adequately by a UK parliament that does not represent the will of the English people).
So both from a legal-constitutional perspective, and a societal-values perspective, the British Bill of Rights and Responsibilities is a distinctly problematic exercise. Dead in the water before it’s even started, one might be tempted to say.