Full text of DOI:10.1093/pa/53.2.242

The British Constitution in 1998–99:
The Continuing Revolution
BY ROBERT HAZELL, MEG RUSSELL, BEN SEYD AND DAVID SINCLAIR
IN last year’s constitutional survey for Parliamentary Affairs we
described the range and ambition of the Labour government’s constitu-
tional reform programme, which saw eleven constitutional bills passed
in the new government’s first session. 1999 proved to be another
historic year for constitutional change. The reform of the House of
Lords, first promised in the preamble to the Parliament Act 1911, was
finally embarked upon in the House of Lords Act 1999. The devolved
assemblies in Scotland and Wales (first mooted as part of Home Rule
all round in the time of Gladstone) were established, holding their first
elections in May and taking up their powers in July 1999. The first
elections were held in Great Britain using forms of proportional repre-
sentation, in Scotland and Wales in May and in the European Parlia-
ment elections in June. And at Westminster the pace of constitutional
change hardly slackened, with six constitutional bills coming before
Parliament. The consequences of the previous year’s reforms, particu-
larly devolution and the Human Rights Act, began to make themselves
felt in further changes at Westminster and in Whitehall.
Lords reform
One of the most significant developments during this year was the
passage of the House of Lords Act 1999, which removed the automatic
right of hereditary peers to sit in the upper house. After decades of
inaction by reforming parties, partly due to anticipated difficulties in
passing such a bill, this ending of some seven hundred years of tradition
took place remarkably smoothly. The bill was not delayed and created
virtually no disruption to the legislative programme as a whole.
The bill was published in December as ‘stage one’ of the promised
reform programme. Its simplicity, alongside Labour’s manifesto state-
ment that removing the hereditary peers would be ‘an initial, self-
contained reform, not dependent on further reform in the future’, led
critics to claim that there would never be a stage two. The government’s
determination to conduct reform in a staged manner can be traced to
the failed reform of 1968, which foundered over arguments about the
long-term future of the House. Nevertheless, the government partly
assuaged the critics by establishing a Royal Commission on Reform of
the House of Lords to make recommendations for stage two. Its
Ą Hansard Society for Parliamentary Government 2000
Parliamentary Affairs (2000), 53, 242–261

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243
creation was announced concurrently with publication of the bill and a
1
White Paper.
Given the House of Lords’ power to delay legislation for over a
year, further measures were needed to ensure the smooth passage of
the bill. In December it emerged that Viscount Cranborne, the Conser-
vative leader in the Lords, along with the leader of the crossbench
peers, Lord Weatherill, had been in secret meetings with the govern-
ment to agree a deal whereby the hereditary peers might be persuaded
to give their support. The proposed deal would retain 92 hereditary
peers in the House until the second stage of reform was reached. Seats
would be shared by the parties, roughly in proportion to their
strengths amongst the hereditary peers. When the arrangement
emerged, Viscount Cranborne was immediately sacked by William
Hague for acting without his authority. However, the arrangement
endured, being proposed as an amendment by Lord Weatherill and
finally accepted by the Commons in the last week of the parliamentary
session. This device provided a lifeline to the hereditary peers whilst
giving the government a powerful lever to ensure that Conservative
members of the upper house did not block the bill. When the upper
house rejected controversial aspects of the government’s Welfare
Reform Bill, there was a threat that support for the amendment would
be withdrawn. However, by careful manoeuvring both bills and the
Weatherill amendment remained intact.
Three other significant amendments were made to the bill in the
Lords. The first related to the independent appointments commission,
promised in the White Paper, and would have made this commission a
statutory body. It was overturned in the Commons and the establish-
ment of the commission was delayed, but promised for New Year 2000.
Another amendment would have preventing peers appointed since the
last election voting to prolong the life of a parliament. This too was
overturned in the Commons. The third amendment referred the bill to
the Privileges Committee for enquiry, on the question whether peers
could be lawfully removed from the House before the next general
election. The enquiry however rejected the complaint.
The election of the 92 hereditary peers retained took place in October
and November. Seventeen of the positions were to be taken by office
holders, chosen on a cross-party basis. The existing Earl Marshal (Duke
of Norfolk, Conservative) and Lord Great Chamberlain (Marquess of
Cholmondeley, crossbench) were appointed automatically, with 15
other office holders (nine Conservatives, two Labour, two Liberal
Democrats and two crossbenchers) elected by the whole house. The
remaining 75 peers were elected by hereditaries in their own party
groups, with 42 seats for the Conservatives, 28 for the crossbenchers,
three for the Liberal Democrats and two for Labour.
A large number of life peers were also appointed during the year.
These helped to level up the party balance in the chamber but also

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included ten hereditary members, six of whom were former Leaders of
the Lords and four of whom were hereditary peers of first creation. By
December 1999 the government had created an unprecedented total of
1
81 life peers since entering office in May 1997, 88 of whom will take
the Labour whip. This has considerably swollen the size of the transi-
tional chamber, which by the end of the year comprised 525 life peers
(179 Labour, 181 Conservative, 49 Liberal Democrat, 105 crossbench
and seven others), plus 26 bishops, 27 current and ex-law lords and the
9
2 remaining hereditary members.
Whilst stage one reform was taking place, the Royal Commission
was considering the options for stage two. The Commission’s chairman
was named in January as Lord Wakeham, a former Conservative Leader
of the House of Commons and of the House of Lords, and it held its
first meeting in March. The White Paper gave it until the end of the
year to report and required it to have regard to four factors: the need
to maintain the pre-eminence of the House of Commons; the presence
of the new devolved institutions; the impact of the Human Rights Act;
and developing relations with the EU.
The White Paper appeared to steer the Royal Commission towards a
chamber of mixed composition, part appointed and part elected. How-
ever, the latter asserted its independence by stating an intention to hold
hearings around the UK. A consultation paper was published and the
public meetings primarily consisted of cross-examination of key wit-
nesses who had submitted written evidence. All the parties made
submissions in varying degrees of detail. The Labour Party’s concen-
trated on principles, such as the need to ensure the house is representa-
tive of the population and distinct from the Commons. It stated the
party’s commitment to retaining an independent element in the house
but did not propose anything specific. Notably, it did not discuss the
respective merits of elected or appointed members, although it was
widely interpreted as favouring a largely appointed house. The Conser-
vative Party commended the report of the Mackay Commission, estab-
lished by William Hague, which proposed two models for the chamber,
both including a mixture of elected and appointed members. The
Liberal Democrats produced a detailed blueprint for a wholly-elected
chamber based on the nations and regions of the UK, with increased
powers over constitutional change and new responsibilities relating to
human rights, international treaties and public appointments. The
Scottish National Party called for the abolition of the upper house (or
failing that, a fully elected chamber), whilst Plaid Cymru favoured a
chamber which linked to the devolved institutions.
Throughout the year opinion polls seemed to indicate growing sup-
port for an elected replacement for the Lords, although in general the
level of public debate was low. An Early Day Motion proposed by the
Conservative MP, Andrew Tyrie, calling for an elected chamber,
received support of 80 Labour MPs, 35 Conservatives, 35 Liberal

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245
Democrats and two Plaid Cymru members. However, a leak from the
Royal Commission in October to the Sunday Telegraph suggested that
a largely appointed chamber was due to be proposed. The suggestion
that it might include as few as 100 elected members against 500
appointed ones was greeted by a primarily negative reaction. Proposals
about functions and powers, which would include an extended role in
constitutional and European matters and retention of a year’s legislative
delay, were less widely remarked upon. At time of writing, the final
conclusions of the Royal Commission were still awaited.
The prospects for future reform of the upper house are difficult to
predict. If the Wakeham Commission can present proposals around
which broad consensus can be found, these may be implemented soon
after the next election. However, the government’s level of motivation
will be affected by the performance of the transitional house and
how this is received by the public. The Conservatives have already
indicated their view that traditional conventions in the house no longer
apply, following the removal of the hereditary peers. The transitional
chamber may thus prove to be more assertive than its predecessor,
although it will continue to suffer from some public stigma as the
unelected house. By the time of the next election, the chamber will
have been in operation for 18 months or more. Over this period,
opinion may begin to crystallise on the need, or otherwise, to progress
future reform.
Devolution and decentralisation
With the three big devolution Acts of 1998 setting the framework for
the new institutions in Scotland, Wales and Northern Ireland, 1999 saw
the birth of the new administrations. The birth of the new executive in
Northern Ireland was painful and protracted but in Scotland and Wales
remarkably smooth. In large part this was because of the government’s
huge majority at Westminster and its tight control of the Labour Party
machinery in Scotland and Wales. In Wales this led to the imposition
of the Blairite candidate as prospective leader of the new Assembly; in
Scotland a team was parachuted in from party headquarters in London
to take over a Labour campaign which seemed to be faltering. In the
long run this can only prove electorally damaging to Labour if it is
perceived as the puppet of London, and advantageous to the nationalist
parties which now provide the main opposition in Scotland and Wales.
Some of the tensions inherent in the government’s approach to devolu-
tion will be examined at the end of the article.
2
Scotland
The new Scottish Parliament was elected on 6 May 1999 and assumed
its full powers under the Scotland Act 1998 on 1 July. Most of the
responsibilities and functions formerly performed by the Secretary of
State for Scotland were transferred to the Scottish Executive.

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Parliamentary Affairs
The new Parliament comprises 129 seats, with 73 constituencies and
6 regional top-up seats to provide proportionality. On a turnout of
8%, Labour won 53 of the constituency seats and three top-up seats:
5
5
the new electoral system denied them a majority. The Scottish National
Party won 35 seats, 28 of which were top-up seats, and forms the main
opposition party. The Conservatives won 18—all top-up seats—and
the Liberal Democrats 17. The proportion of women elected to the
Parliament was unprecedentedly high, at 37%. A major reason for this
was Labour’s policy of ‘twinning’ to achieve gender equality. Out of
Labour’s 56 elected members 28 were women, although the SNP had a
similar proportion, with 16 out of 35. Within a week of their election,
the 129 Members of the Scottish Parliament (MSPs for short) were
sworn in, elected Sir David Steel as their Presiding Officer with two
deputies, and adopted Standing Orders recommended by an all-party
Consultative Steering Group to enable them to begin the conduct of
business. They are temporarily accommodated in the Assembly Hall of
the Church of Scotland, pending construction of the new parliament
building at Holyrood.
Donald Dewar was sworn in by the Queen as First Minister in
Scotland on 17 May and the Queen returned to Edinburgh for the
Official Opening of the Parliament on 1 July. After a week of negoti-
ations, he formed a coalition government of nine Labour and two
Liberal Democrat ministers, with 11 deputy ministers (including two
more Liberal Democrats): the new Executive has 22 members in all.
The coalition agreement between the parties was set out in a 20-page
document entitled Partnership Scotland. The greatest stumbling block
was student tuition fees, which the Liberal Democrats had pledged to
scrap in their election manifesto (as had the Scottish National Party and
the Conservatives) but which Labour is determined to maintain in order
not to undermine the integrity of the UK’s higher education funding
system. The issue was referred to an inquiry due to report at the end of
1999. The other key issue is proportional representation for local
government, which is less likely to cause disharmony because Labour
wants to take action to curb the recurrent scandals in Labour-domi-
nated local authorities.
The week of protracted negotiations over the coalition agreement led
to criticism in the Scottish media, not yet used to the exigencies of
coalition government. In the early months there was also some criticism
of the Scottish Parliament. The necessary preliminary business of fixing
hours of meetings, recess dates, MSPs’ pay and allowances, as well as
some wrangling over the plans for the new building, exposed members
to the charge of being more concerned for themselves than for the job
they were elected to do. They were also caught by the timing of a May
election, July hand-over and a pledge to be ‘family-friendly’ by observ-
ing the Scottish school holidays in July and August, which earned them
little credit in the eyes of the media.

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247
Some of the Scottish public had not been prepared for the Parliament
to elect an Executive (too much like Westminster and Whitehall). Its
size attracted adverse comment—with 22 ministers compared with the
six who ran the Scottish Office—but in part this reflects the realities of
life as a devolved government compared with being a UK department.
Thus the Executive includes a Finance Minister, the parliamentary
business managers and two Law Officers, none of whom were previ-
ously part of the Scottish Office.
Despite the more complex ministerial arrangements, the Scottish
Cabinet has not made far-reaching changes in the departmental struc-
ture. The former Scottish Office departments, or their constituent parts,
are still recognisable, although there are a number of new labels (the
Department of Justice, headed by the Liberal Democrat leader and
Deputy First Minister Jim Wallace; Rural Affairs; Enterprise and Life-
long Learning). A sharper difference is presented by the proceedings of
the Scottish Parliament, which is determined to break from the West-
minster mould. Members address each other by name rather than by
their constituency. It has established a range of powerful subject com-
mittees, combining the functions of Westminster’s Select and Standing
Committees and with power to initiate their own legislation. Other
changes include Parliamentary Questions throughout the summer recess
and no annuality for the legislative programme, so that bills can be
carried over. The first legislative programme was announced in June
1999 as part of the coalition’s programme of government—Making it
Work Together—and included eight bills: three on aspects of land
reform and one each on local government standards, incapable adults,
transport, education and finance/audit.
3
Wales
The Government of Wales Act 1998 is longer than its Scottish counter-
part, with 159 sections and 18 schedules, but that reflects the complex-
ities of executive rather than legislative devolution, symbolised in the
names of the respective bodies. Scotland has a Parliament with law-
making and (limited) tax-varying powers, while Wales has an Assembly
with powers of secondary legislation only and is wholly dependent for
its £7 billion budget on an annual block grant from London. The whole
scheme in the Government of Wales Act is much more prescriptive of
what the Assembly shall and shall not do. For example, it is required to
establish Regional Committees, including one for North Wales, to
overcome the divisions between North and South Wales, as well as a
Partnership Council with local government, a scheme to promote the
interests of the voluntary sector and to consult with business. The whole
is much more tightly controlled and reflects Labour’s long-standing
ambivalence about devolution in Wales. It is also in its technical detail
a lot harder to understand; the Transfer Order conferring executive
powers on the Assembly runs to over 500 pages.

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Parliamentary Affairs
The first elections for the National Assembly for Wales took place on
the same day as the Scottish elections, on 6 May 1999. They were
somewhat overshadowed by the campaign for the post of prospective
Labour leader in the Assembly, required after the resignation of the
Secretary of State for Wales, Ron Davies. That campaign was narrowly
won by the Blairite candidate and his successor as Secretary of State,
Alun Michael MP. He was opposed by backbencher Rhodri Morgan
MP. Rhodri Morgan won 64% of party members’ votes, but only 47%
of the total vote, because instead of adopting one-member-one-vote the
Labour Party had constructed an electoral college with three groups:
party members, affiliated trade unions, Welsh Labour MPs and Assem-
bly candidates. This enabled Alun Michael to squeeze through by
winning 64% of trade union votes and 58% of Welsh Labour MPs’
and Assembly candidates’ votes. He announced that he would quit the
Cabinet in May (although in the event he did not resign until the end
of July) and stand down from the Westminster Parliament at the next
election in order to concentrate on Wales. All five Labour MPs who
won seats in the Welsh Assembly followed suit.
The National Assembly for Wales is half the size of the Scottish
Parliament, with 40 constituency members and 20 additional members
drawn from regional lists to provide an element of proportionality. In
the May elections, turnout was only 45%, reflecting the lesser degree of
interest in devolution in Wales and Labour’s own internal difficulties
which led some of their supporters to stay at home. The result was that
Labour just failed to win a majority with 28 seats. Plaid Cymru won
1
7, the Conservatives 9 and Liberal Democrats 6. Here, too, most of
the 20 top-up places from the regional lists went to the Conservatives
8 seats) and the nationalists (8 seats). The proportion of women elected
(
was high, at 37%. Labour’s ‘twinning’ policy resulted in 15 out of 28
elected candidates being women. But neither the Scottish Parliament
nor the Welsh Assembly has any elected members from the ethnic
minorities.
Alun Michael, who won his seat as an additional member, decided to
form a minority government rather than attempt a coalition. Labour
quickly had to come to terms with what absence of a majority meant.
With Plaid Cymru it had to trade the position of the veteran nationalist
Lord Dafydd Elis Thomas as Presiding Officer in return for Alun
Michael being elected unopposed as First Secretary. He appointed his
rival, Rhodri Morgan, as Secretary for Economic Development. The
Assembly’s design and now its political balance have handed significant
potential for influence to its six Subject Committees covering Economic
Development, Health and Social Services, Agriculture, the Environment,
Education Pre-16, and Education Post-16. In particular their chairper-
sons have emerged as potential power-brokers, with Labour providing
only two, Plaid Cymru two and the Liberal Democrats and Conserva-
tives one each.

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249
Northern Ireland
To explain developments in 1999 we must briefly recapitulate on
events in 1998. Devolution in Northern Ireland has followed a differ-
ent sequence from Scotland and Wales. After endorsement of the Bel-
fast Agreement of April 1998 in a referendum, Parliament rushed
through the Northern Ireland (Elections) Act 1998, which laid the
ground for the first elections for the Assembly in June that year. It has
108 members, elected in 18 six-member constituencies by STV. Its
relatively large size (in proportion to population it is three times as
big as the Scottish Parliament) reflects the cross-party talks which
resulted in the Belfast Agreement and is intended to provide greater
inclusivity. In the first elections this was almost but not completely
achieved. The Ulster (Official) Unionist Party won 28 seats, Social
Democratic and Labour Party 24, Democratic Unionist Party 20, Sinn
Fein 18, Alliance 6, UK Unionist Party 5, Progressive Unionist Party 2,
Women’s Coalition 2, and independents (who subsequently formed the
United Unionist Assembly Party) 3. In terms of the main political
divide, 58 Assembly members registered as unionists and 42 as nation-
alists, while the 6 Alliance Party and 2 Women’s Coalition registered
as ‘other’.
The main devolution legislation defining the powers of the Assembly,
the Northern Ireland Act 1998 was enacted subsequently, but with
equal haste, being introduced in the summer and receiving Royal Assent
in November 1998, and provides for full legislative and executive
authority in respect of the matters currently devolved administratively
to the six Northern Ireland government departments. It will thus have
powers much closer to the Scottish Parliament than the Welsh Assem-
bly; and it will have the capacity, by local agreement and subject to
4
Westminster approval, to expand its autonomy further.
After this flurry of legislative activity, the devolution process stalled
because of a refusal on the Unionist side to enter a power sharing
executive until there was evidence that the IRA was serious about laying
down its arms (‘no guns, no government’). The Assembly had elected a
shadow First and Deputy First Minister in 1998, after the elections. To
take office the Act requires that they must secure the support of a triple
majority: a majority in the Assembly and a majority of both Nationalist
and Unionist members. David Trimble, the leader of the Ulster Unionist
Party, was elected as shadow First Minister, and Seamus Mallon, the
nominee of the (nationalist) Social Democratic and Labour Party, was
elected his Deputy. But the Unionists could not bring themselves to take
the further step of electing the full power sharing executive. Under the
d’Hondt formula prescribed for electing an executive in proportion to
the number of seats held by each party, it would include two ministers
from Sinn Fein (the political wing of the IRA), four Ulster Unionists,
four SDLP and two Democratic Unionists (Ian Paisley’s party). For the

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Unionists, it was always going to be difficult to sit down in government
with Sinn Fein; without some steps towards disarmament it was politi-
cally impossible.
Throughout 1999 repeated efforts were made by the British and
Irish governments to kick-start the process, but it moved forward
painfully slowly. In September momentum was revived with the return
of American Senator George Mitchell, who had brokered the Belfast
Agreement eighteen months before. After eleven weeks of delicate
negotiations, the impasse was broken. The IRA agreed to appoint an
interlocutor to the commission supervising arms decommissioning
under General de Chastelain, and David Trimble agreed to try to form
the power sharing executive once again. On 27 November he con-
sulted the Ulster Unionist Council, which endorsed his proposals for
government by 480 votes to 349. With 58% support, this was not a
comfortable victory and was gained only by Trimble agreeing to recon-
vene the Council in February 2000 to review the IRA’s progress on
decommissioning. The support of the UUP’s governing body is still
provisional. But it was enough to enable the power sharing executive
to be formed, with the two ministers from Sinn Fein (including Martin
McGuinness, former IRA chief of staff, as Education Minister). In a
flurry of activity, Orders were made under the Northern Ireland Act
1998 transferring power to the new executive in time for its first
meeting on 2 December. But as a harbinger of the difficulties inherent
in power sharing, the meeting was boycotted by the two ministers
from Ian Paisley’s Democratic Unionist Party, who refused to sit round
the table with Sinn Fein.
Regional government in England
Labour’s 1997 manifesto had promised to establish Regional Develop-
ment Agencies to coordinate regional economic development and
Regional Chambers to coordinate transport, planning, and bids for
European funding. It had also promised in time to introduce legislation
allowing people in England, region by region, to decide in a referendum
whether they wanted directly elected regional government. In its first
year the new government introduced the Regional Development Agen-
cies Act 1998, but it did not include provision to establish Regional
Chambers on a statutory basis and made no moves towards directly
elected Regional Assemblies.
The eight new Regional Development Agencies (RDAs) went live on
April 1999. Contrary to the hopes of the English Regional Associa-
1
tions, they are not executive arms of the Regional Chamber, but are
appointed by ministers and are accountable through ministers to Parlia-
ment. Their budgets come from Whitehall, and even though their board
members are chosen from the region, they are clearly agencies of central
government. Each has a board of 13, with half the members from
business and a third from local authorities.

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251
Regional Chambers have not been wholly written out of the script,
but they are voluntary, non-statutory bodies which, if ‘designated’ by
the Secretary of State, must by consulted by the RDA in the formulation
of its regional plan. During the summer of 1999 eight Regional Cham-
bers were so designated, one for each RDA. They vary in size from 40
to over 100 members. No more than 70% of their members can be
from local government, the remainder come from the other regional
stakeholders—business, the trade unions, education, the voluntary sec-
tor. Instead of being the political masters of the RDAs, the Regional
Chambers are mere appendages, which may wither on the vine. With
no statutory powers and no budget beyond the tiny sums contributed
by member local authorities, they are simply a forum or sounding
board. The government’s strategy is to wait and see whether these new
regional structures build up regional support and a momentum for
further decentralisation.
Several regions have ambitions to go much further. The North East
is setting the pace. A MORI poll conducted in March 1999 showed the
strongest support there for an elected regional assembly (50% in favour,
2
7% against). The North of England Assembly is following the example
set in the 1980s by the Campaign for a Scottish Parliament: in April
999 it held the first meeting of the North East Constitutional Conven-
1
tion, a cross-party body charged with drawing up a blueprint for a
directly elected regional assembly. Not to be outdone, the North West
Regional Assembly planned its own Constitutional Convention,
launched at a conference in July. Another pace setter is the Regional
Assembly for Yorkshire and Humberside. In January 1999 even the
South East Forum changed its name to the South East Regional
Assembly.
Despite choosing the name Regional Assembly, none of these bodies
is directly elected, and none is even close to that. The test for all of
them is to formulate a coherent set of functions for an elected assembly;
to demonstrate to local authorities and to central government that it
would add value; and then to persuade the people of the region, who
will have to approve the proposals in a referendum. Richard Caborn,
then Minister for the Regions, said in a Glasgow speech in June that
devolution for the English regions should get under way immediately
5
after the next election, but he was transferred to the Department of
Trade and Industry in the reshuffle two months later. In August,
Downing Street was reported to have hardened its line against regional
6
assemblies in England. The Prime Minister was said to be wary after
the election results in Scotland and Wales and the difficulty of finding a
New Labour candidate for London’s Mayor. Following Richard
Caborn’s move, responsibility for regional government was subsumed
by Hilary Armstrong: although retitled Minister for Local Government
and Regions, she is unlikely to be as strong an advocate for regional
government as was Caborn.

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Parliamentary Affairs
Local government and London
1999 saw the passage of the Greater London Authority Act to establish
an elected assembly and a directly elected mayor for the capital. It is a
huge and complex piece of legislation, with over 300 sections and some
30 schedules. The assembly will have 25 members elected by the
Additional Member System—14 ‘constituency’ members and 11 Lon-
don-wide members selected from closed party lists to ensure a more
proportional result. The first elections will be held in May 2000, with
plans to use electronic voting and extensions of postal voting to increase
turnout. Towards the end of 1999, attention switched to the contest to
secure the nomination of the major political parties for the post of
mayor. The Liberal Democrats were the first to select their candidate
after a relatively low-key contest won by Susan Kramer on a postal
ballot of members. The Conservatives announced, after a ballot of all
London members, that Jeffrey Archer (former deputy party chairman)
was to be their candidate, but in November he resigned in the face of
allegations that he had perverted the course of justice by suborning a
witness in a libel action. Meanwhile, the Labour Party were experienc-
ing almost equal difficulty as its leadership tried desperately to stop Ken
Livingstone, the popular former leader of the Greater London Council,
being selected as the candidate against the former Health Minister,
Frank Dobson, and Glenda Jackson. The party opted for an electoral
college, as used in Wales, instead of allowing one-member-one-vote
amongst party members, in the hope that this would ensure a Dobson
victory; and Tony Blair declared that Ken Livingstone would be a
disastrous choice as London’s first elected mayor.
Despite these difficulties in London, the government pressed ahead
with its plans to introduce elected Mayors or cabinet systems in local
authorities elsewhere in England. The hope is to revive interest in local
politics and to reverse falling electoral turnout, which reached its lowest
level ever at the local government elections in May 1999 (an average of
30%). The government published its draft Local Government (Organ-
isation and Standards) Bill, which will require councils to seek voters’
views on whether to move to a cabinet model and/or a directly elected
mayor. The status quo will be an option only if the proposals are
defeated in a referendum. Should councils not hold a referendum—
which can be triggered by a petition supported by 5% of electors—the
government would retain the power to force councils to put the issue to
a popular vote. The bill was subject to pre-legislative scrutiny by a joint
7
Parliamentary committee which reported in July, and a Local Govern-
ment Bill featured in the Queen’s Speech in November.
European elections and the Treaty of Amsterdam
The British constitution operates within the wider constitutional frame-
work provided by European law. Early in 1999 the government finally

The Constitution
253
succeeded in bringing the electoral system used in the UK for the
European Parliament elections into line with the proportional systems
used in all the other member states. The European Parliamentary
Elections Bill had not originally been in the first year legislative pro-
gramme but was introduced following pressure from the Liberal Dem-
ocrats applied through their membership of the Joint Consultative
Cabinet Committee. However, it fell right at the end of the first session,
in November 1998, because the House of Lords refused to accept closed
party lists, even though it was sent back from the House of Commons
five times. It was reintroduced in December, passed quickly through all
its stages in the Commons, and was voted down again on second
reading in the Lords. The government then invoked the Parliament Acts
1911 and 1949, bypassed the Lords and the bill received Royal Assent
in January 1999. This provided just enough preparatory time to enable
the European Parliamentary elections in June 1999 to be held under the
new regional list system of voting.
During 1999, the Treaty of Amsterdam, implemented in the UK by
the European Communities (Amendment) Act 1998, began to come
into force. Third Pillar matters on Justice and Home Affairs, previously
dealt with on an intergovernmental basis, were brought within the
regime of the European Treaties and the jurisdiction of the European
Court of Justice. This began to make itself felt in tighter cooperation
on issues such as immigration, asylum, policing, supranational enforce-
ment of court judgments, and arrangements for the mutual inspection
of court systems in other member states. These issues were the subject
of a special EU summit meeting held in Tampere, Finland in October
1999 to discuss the implementation of a European area of Freedom,
Security and Justice. The summit concluded with the aim of creating
EU-wide policies on immigration and asylum, as well as a European
judicial sphere, with mutual recognition of court judgments in both
criminal and civil areas of law. In criminal cases additional measures
proposed include a forum for European police chiefs, a ‘Eurojust’ unit
of prosecutors and investigating judges, and a system of ‘Eurowar-
rants’, making it easier to arrest suspects resident in another member
state. The Tampere meeting also proposed that there should be a
European Union Charter of Fundamental Rights, gathering together
existing provisions on human rights protection within a single
instrument.
Human rights
The Human Rights Act 1998 will not come fully into force until
October 2000. Only then will the European Convention on Human
Rights (ECHR) be fully incorporated into domestic law throughout the
UK. But it has already come into force in Scotland and Wales, and for
certain preparatory purposes in the rest of the UK. In November 1998
the Home Secretary, Jack Straw, brought into force section 19 of the

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Human Rights Act, which requires that all ministers in charge of bills
in either House make a ‘statement of compatibility’, indicating that in
their view the bill is compatible with rights under the European
Convention. If unable to do so, ministers must make a statement that
they wish the House to proceed notwithstanding any incompatibility.
At the moment, the practice is that a note appears on the face of each
government bill stating that ‘in my view the provisions of the Bill are
compatible with the Convention rights’. There is no indication of the
grounds on which that view is reached, and on a number of bills (such
as the Immigration and Asylum Bill) the government has been pressed
hard by parliamentarians to provide a fuller statement of its reasoning.
In Scotland and Wales, the Human Rights Act effectively came into
force on 1 July 1999, because the Scottish Parliament and Welsh
Assembly, together with their Executives and law officers, are bound by
the devolution legislation to act in accordance with the ECHR. The
Scottish courts have been quick to explain the implications of the
Executive’s human rights obligations. In an early—failed—petition to
punish a journalist and editor for contempt of court the Court emphas-
ised that the Lord Advocate cannot move the court to grant any remedy
that is incompatible with the ECHR (Lord Advocate v Scottish Media
Newspapers). The impact of the Human Rights Act began to make
itself felt mainly in criminal cases, and in the autumn the first major
ruling declared that the Lord Advocate’s powers to appoint temporary
sheriffs was incompatible with Article 6 of the Convention (the right to
an independent and impartial tribunal) because he was also the head of
Scotland’s prosecution system. This will have major implications for
the court service, which had been using hundreds of temporary sheriffs;
and for judicial appointments generally.
Scotland may be forced in advance of the UK into having to think
about an independent Judicial Appointments Commission; and there
are other indications that the implementation of the Human Rights Act
in Scotland may lead to the development of a distinctive Scottish human
rights regime. The Justice Minister, Jim Wallace, has announced that he
was in favour of a Scottish Human Rights Commission and was also
8
proposing distinctive Scots solutions to freedom of information. Scot-
tish experience is also filtering through to the higher courts in London.
In a landmark case decided by the House of Lords (Kebeline), the
Scottish law lord, Lord Hope, commented that incorporation of the
ECHR ‘will subject the entire legal system to a fundamental process of
review and, where necessary, reform by the judiciary’. The Human
Rights Act will give the judges a much higher profile.
Northern Ireland is also developing its own human rights framework.
The Belfast Agreement promised a Human Rights Commission for
Northern Ireland, and in January 1999 Professor Brice Dickson was
appointed as Chief Commissioner. In July the Republic of Ireland
followed suit, publishing a bill to establish an Irish Human Rights

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255
Commission. It will cooperate with the Northern Ireland Commission
through a Joint Committee.
Regulation of the political parties
The UK is increasingly coming into line with practice in other liberal
democracies by closely regulating party funding and elections. The first
step was to require parties to register as legal bodies, under the
Registration of Political Parties Act 1998. Shifting them from a volun-
tary to a statutory basis was, however, a relatively minor move. The
real shake-up arises out of the recommendations of the Committee on
Standards in Public Life, chaired by Lord Neill, which submitted its
report on party funding in October 1998. The government responded
in July 1999, in a White Paper and draft bill (Cm. 4413), in which 98
of the committee’s 100 recommendations were accepted. Following
Neill, its overall themes were the greater disclosure by the parties of
their funding, limits on election spending, a qualified extension of state
support for parties, and a strong independent body to police parties and
elections.
The first part of the package deals with the disclosure of funding
sources. Henceforth, parties will have to disclose donations higher than
£5,000 (or £1,000 to a ‘sub-unit’, such as a constituency branch).
Disclosure will be made four times a year to the Electoral Commission,
except during general elections when parties will have to report every
seven days. The second part of the package works from the opposite
end, restricting election spending. The government adopted Neill’s
recommendation of a £20m limit on each party for general elections
(spending by Labour and the Conservatives at the 1997 election was
estimated by the Neill Committee at £26m and £28m respectively). The
limits will be lower for elections to the European Parliament and
devolved assemblies. The time limits will apply for the 365 days prior
to a general election and the four months prior to other elections. The
parties must submit their accounts to the Electoral Commission within
six months of the poll.
The sweetener for the parties comes in the form of an extension of
state support for their activities. The opposition parties will receive
more ‘Short money’ for their parliamentary activities. Both the govern-
ing and opposition parties will also be able to claim support for policy
development from an annual pot of £2m. However, the government
rejected Neill’s recommendation for tax relief for small donations. Its
reasons for this decision—that the relief would amount to state aid,
and the estimated annual cost of £4–5m—look odd, however, when set
against the increase in public support of £5m per year contained
elsewhere in the White Paper.
Supervising the new rules and reporting requirements will be an
Electoral Commission (which was recommended not only by the Neill
Committee on party funding, but also by the Jenkins Commission on

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the Voting System in 1998). Its main task will be overseeing party
donations and spending. It will also incorporate the functions of the
Parliamentary Boundary Commission and Local Government Commis-
sion, although not until 2005, as well as producing reviews of the
conduct of elections to ensure effective practice. It will also have some
9
responsibility for ‘promoting awareness of electoral matters’ and for
citizenship education. Given the need for the new regulatory regime to
be in place before the next election, the Electoral Commission will have
its work cut out in equipping itself to receive the parties’ disclosures
and monitor their spending. Importantly, though, it will be accountable
to Parliament, not to the Home Office. Its membership, of between five
and nine, will be the subject of interparty consultations; its budget and
strategy will be overseen by a new Speaker’s Committee. Both in the
intention and execution, the Commission will operate as a powerful
and independent body.
A glimpse of how the Commission might work, and the problems it
will face, was provided in Scotland, where a Scottish Election Commis-
sion was established before the May elections by an initiative by the
parties. Chaired by Professor Anthony King, its role was to oversee
spending limits and disclosure of donations. In its final report, it noted
that there had been a high level of compliance by the parties with an
1
0
agreed voluntary code. However, should there be a lack of such trust
between the parties—highly likely at Westminster elections!—the UK
Election Commission will find it far more difficult to police spending.
The latter will also need an adequate resource base to enable it to keep
track of spending by non-party groups, which the Scottish Commission
found beyond its capacity. Its task will be made more onerous by the
flexible nature of many of the UK’s constitutional rules: for example,
the requirement that election spending be capped for the twelve months
prior to a contest will be difficult to define in the absence of fixed-term
Parliaments.
One issue into which the Neill Committee strayed without the
government intending it to, and on which its recommendations have
not been accepted, is referendums. In its White Paper, the government
rejected Neill’s proposal that it should refrain from participating in a
referendum and agreed only to a moratorium on public information in
the 28 days prior to the poll. It also rebutted Neill’s rejection of
spending caps by suggesting limits for umbrella groups and the parties
of £5m and for other groups or individuals and groups of £0.5m. The
last is likely to cause the most concern, since it severely restricts the
resources available to the anti-EMU group at the promised referendum
on the single currency.
Electoral reform
While the elections in Scotland, Wales and for the European Parliament
introduced new voting arrangements, the reform debate spread to other

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tiers of government. The most headway was made in relation to local
government in Scotland, which was the focus of a report to the Scottish
Executive in June 1999. Headed by Neil McIntosh, the Commission on
Local Government and the Scottish Parliament recommended, inter
alia, that proportional representation be introduced for the next local
11
government elections in Scotland in 2002. It recommended a further
review of specific electoral options be set up, commending in particular
the AMS, STV and AV Top Up (the recommendation of the Jenkins
Commission) systems. The Renewing Local Democracy Working
Group, chaired by Richard Kerley, started work in September 1999.
Electoral administration
The Cinderella of elections, their procedures and administration, was
also the subject of reform proposals in 1999. After sitting since January
1
998, the Home Office Working Party on Electoral Procedures issued
12
its final report in October 1999. The review was established by the
Home Secretary following concern about falling voter turnout and was
asked to consider ways in which the electoral process could be moder-
nised. Its main recommendations were: a continuously updated, or
‘rolling’, register to replace the current one which is updated once each
year; legislation to allow pilots of new voting approaches (e.g. varia-
tions in polling hours and days, out of area voting); a looser regime to
cover absent voting, so that this option becomes more effective.
Freedom of information
In July 1998 responsibility for freedom of information was transferred
from David Clark in the Cabinet Office (who was dropped in the first
government reshuffle) to Jack Straw in the Home Office. This inevitably
caused delay as a new ministerial team and new group of officials got
to grips with the issues, and as other Whitehall departments exploited
the fresh opportunity to dig their heels in. The Home Secretary pub-
lished the long awaited draft Freedom of Information Bill on 24 May
1
999 (Cm. 4355). It represented a major retreat from the proposals in
David Clark’s White Paper Your Right to Know (Cm. 3818, December
997), and was widely criticised in the press and in Parliament. Criti-
1
cism focused in particular on the exemption provisions (which include
unnecessarily broad exemptions for policy advice, information about
investigations and commercial information) and on the capacity to
create new exemptions by ministerial order. In place of the overriding
public interest test in the previous government’s Code of Practice,
departments and public authorities would merely have to consider the
release of exempt information on a discretionary basis.
The draft bill was subjected to pre-legislative scrutiny by two select
committees in summer 1999, the Public Administration Committee in
the Commons and an ad hoc Select Committee in the Lords. Both called
for substantial changes. The Commons committee stated: ‘An effective

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Bill needs to be based more firmly on clear rights and less on discretion-
ary duties. This requires a rebalancing of the draft Bill in the direction
1
3
of the right to know.’ The Lords added: ‘The most important single
amendment needed is to give the Commissioner a public interest
override power . . . to overrule a ministerial decision . . . and to order
14
disclosure.’ In its reply, the government gave little ground, leading the
Commons committee to take the unusual step of publishing a further
1
5
critical report. A Freedom of Information Bill was included in the
Queen’s Speech and introduced in November 1999.
Implications for central government: Whitehall
The final part of this survey considers the implications of the constitu-
tional reform programme for central government. So swift has been the
pace of constitutional change, and the design so piecemeal, that corres-
ponding changes at the centre have not hitherto formed part of the
government’s programme. But as devolution has come into effect, the
centre has inevitably been forced to adapt, with changes being seen
both in Whitehall and at Westminster.
In Whitehall, the immediate effect was a shrinking in the role of the
territorial Secretaries of State. Donald Dewar stepped down as Scottish
Secretary to become the First Minister in Scotland. He was replaced by
John Reid, who inherited a tiny headquarters staff in London (now
known as the Scotland Office) because all the rest of the old Scottish
Office was devolved to the Scottish Executive. Alun Michael stepped
down as Secretary of State for Wales after becoming First Secretary of
the new Welsh Assembly and was replaced by Paul Murphy. To reflect
the shrinking role of the centre there was a reduction of junior ministers
in the July reshuffle: the Welsh Office lost one (down from three to
two) and the Scotland Office was reduced from five (originally six)
down to two. In the further reshuffle in October, Mo Mowlam was
replaced as Northern Ireland Secretary by Peter Mandelson.
Whitehall has also begun to adapt its behaviour to take account of
the new administrations. Most departments now have Devolution or
Constitutional Units to handle relations with the new devolved admin-
istrations. During 1999, written agreements, called Concordats, were
drafted to provide a framework of guidance. On 1 October the govern-
ment published the Memorandum of Understanding and the first four
Concordats between the UK, Scottish and Welsh administrations (Cm.
4444). Further bilateral Concordats will be published by individual
departments. The four initial ones cover Coordination of EU Policy
Issues, Financial Assistance to Industry, International Relations, and
Statistics. The Memorandum provides for a joint ministerial committee
as part of the new machinery for intergovernmental relations within the
UK. In summit form, it will be chaired by the Prime Minister, with
sectoral meetings chaired by the responsible UK ministers. A reflection
of the asymmetrical approach to devolution is that there is no represen-

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259
tation for England: the Memorandum states that ‘UK ministers and
their departments represent the interests of England in all matters’.
Implications for the centre: Westminster
At Westminster, the Procedure Committee initiated an enquiry into the
Procedural Consequences of Devolution. The government’s memor-
andum to the committee was brief and minimalist, but the Committee
was inclined to go further. Its report (HC 185) was published on 19
May 1999. While wishing to undertake a full review in due course, its
initial recommendations included abolition of the Scottish, Welsh and
Northern Irish Grand Committees; new rules restricting questions to
the Scottish and Welsh Secretaries to matters relating to their reduced
responsibilities; and a new procedure for bills relating exclusively to
one part of the kingdom. This would involve a special Second Reading
Committee, composed of a minimum of 35 English members for English
bills, 18 Northern Irish members for Northern Ireland bills, 20 Scottish
members for Scottish bills, and 20 Welsh members for Welsh bills. It
also discussed the possibility of Westminster committees holding joint
meetings with committees of the devolved assemblies and access for
members of the devolved assemblies.
The government’s response was published in October. Maintaining
its cautious line, it argued in favour of retaining the Scottish, Welsh and
Northern Ireland Grand Committees and against the Procedure Com-
mittee’s proposal that the Speaker should be able to certify bills as
relating exclusively to Scotland, Wales, England or Northern Ireland.
The Leader of the Opposition, William Hague, argued that such
changes do not go far enough. Speaking to the Centre for Policy Studies
on 15 July, he pointed out that the government, having devolved power,
must now turn to the anomalies affecting England: ‘It is our duty to
find a way through that strengthens the Union after devolution. I believe
the answer lies in giving a voice to England; in English votes under
English laws.’ His proposals do not entail the creation of an English
Parliament but a restriction of the rights of Scottish MPs so that they
could no longer vote on matters that affect England only.
On 29 July the Conservative Party announced a Commission to
Strengthen Parliament, chaired by Lord Norton of Louth (otherwise
Professor Philip Norton). It will report during 2000, in time to inform
the Conservative manifesto. Working to a longer time-scale is the new
Commission launched in October by the Hansard Society into Parlia-
ment’s Role in Scrutinising the Executive. That is chaired by Lord
Newton, former Conservative Leader of the Commons, and aims to
report by March 2001. Another suggestion for a new forum to discuss
English business has come from the House of Commons Modernisation
Committee. In a report published in April 1999 it recommended a new
committee (similar to the Australian Main Committee) to reduce pres-
sure on debates in the chamber (HC 194). The parallel chamber is to

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start in the 1999–2000 session, sitting in the Grand Committee Room
off Westminster Hall. It will deal with non-contentious business such as
Green Papers, adjournment debates and select committee reports, but
will not vote on business. The Modernisation Committee also mooted
the idea that it could be used to discuss matters of interest to the
English regions.
Parliamentary privilege
The Joint Committee on Parliamentary Privilege, chaired by Lord
Nicholls (a law lord), delivered its report in April (HC 214, HL 43). It
recommends updating the laws regulating freedom of speech in Parlia-
ment by a new Parliamentary Privileges Act and removing the change
in the law that allowed Neil Hamilton MP to bring his libel action
against the Guardian. It also recommends that all laws should apply to
Parliament itself, which should cease to be a statute free zone.
The continuing revolution
In private discussion at the Labour Party conference in 1998, Tony
Blair suggested that constitutional reform was Year 1 business: the
party had been there, done that, and could now get on with the bread
and butter issues of more direct interest to its supporters. It is true that
in its first year the new government introduced an immense programme
of constitutional change, with a dozen constitutional bills in the first
session. But although the pace of constitutional change has slackened,
the momentum continues—in terms of further legislation and in terms
of the knock-on consequences from the first wave. Constitutional
change is not a one-off process: changes as big as devolution and the
Human Rights Act release a powerful dynamic whose effects will be felt
for many years to come.
The second session saw three constitutional bills being passed, each
of them heralding further major change. The House of Lords Act 1999
removed the hereditary peers as the first stage of Lords reform. The
Greater London Authority Act will introduce a directly elected mayor
for London, the first ever in the UK; but if the government has its way,
not the last. And the European Parliamentary Elections Act introduced
the first UK-wide elections to be held under a system of proportional
representation. These may be the only nation-wide elections held under
proportional representation, but Labour’s 1997 manifesto contained a
promise that a referendum would be held on changing the voting system
for the House of Commons—a promise currently left hanging in the air
because the government has not moved to implement the commitment
16
that the referendum would be held during this Parliament.
The Queen’s Speech in November 1999 shows the pace of change
continuing, with four constitutional bills in the third session: freedom
of information, local government reform (elected mayors and cabinets),
controls on party funding and establishment of an Electoral Commis-

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sion, and reform of electoral procedures to make voting easier. The first
three bills were published in draft during the second session: another
small constitutional innovation, enabling a consultation stage to take
place before a bill is introduced, and Parliament to hold pre-legislative
scrutiny hearings. The Queen’s Speech promised the publication of
more draft bills and further long-term reform of the House of Lords
following the report of the Royal Commission. The year 2000 is the
first full year of implementation of the devolution settlement and sees
full implementation of the Human Rights Act. Tony Blair may believe
that the constitutional revolution is over but his government is provid-
ing us with plenty of material for a constitutional survey of the year
2000.
1
2
Modernising Parliament—Reforming the House of Lords, Stationery Office (Cm. 4183).
For further detail see J. Mitchell, ‘The Creation of the Scottish Parliament: Journey without End’,
Parliamentary Affairs, October 1999.
3
For further detail see L. McAllister, ‘Establishing the National Assembly for Wales’, Parliamentary
Affairs, October 1999.
4
5
6
7
8
9
Northern Ireland Act 1998, s. 4.
The Times, 4.6.99.
Daily Mail, 3.8.99.
HL 102, HC 542, July 1999.
Scottish Executive: An Open Scotland, SE/1999/51, November 1999.
The Funding of Political Parties in the United Kingdom, Cm. 4413, Stationery Office, 1998, p. 12.
Final Report of the Scottish Election Commission, June 1999, p. 9.
Moving Forward: Local Government and the Scottish Parliament, report of the Commission on Local
Government and the Scottish Parliament, Stationery Office, June 1999.
Final Report of the Working Party on Electoral Procedures, Home Office, October 1999.
HC 570, July 1999.
1
1
0
1
12
13
14
15
16
HL 97, July 1999.
HC 925, November 1999.
The commitment on the timing of the referendum was in the report of the Joint Consultative
Committee on constitutional reform issued just before the election in March 1997.