Are we there yet? Measuring success of constitutional reform.

• Author: Dakolias, Maria

ABSTRACT

Like many other countries in the world, the United Kingdom has been modernizing its constitutional arrangements. But unlike all other countries, there is no codified, written constitution. Since 1997, that unwritten constitution has undergone a radical overhaul. Taken together, the changes to systems and institutions represent the most sustained program of reform in the United Kingdom for a century. The main question is whether these reforms were successful. What does success mean? As is well known, implementation is the key to success. So evaluating the reforms and discussing successes and challenges are not only important for the U.K. internal dialogue but also for other countries. As regionalism and globalization continue, the world is less compartmentalized, less segmented, and more interdependent than ever before. Today the rule of law and good governance are very much part of the development agenda. This article assists in providing a public account of how the reforms have come thus far and explain what constitutional reform is in the United Kingdom.

TABLE OF CONTENTS I. INTRODUCTION II. CONCEPTUAL APPROACH III. THE GOAL OF DEMOCRACY IV. GOOD GOVERNANCE A. Empowerment, Representation, Participation, Civil Society B. Free and Fair Elections C. Openness and Transparency D. Effective Checks and Balances E. Devolution V. RULE OF LAW A. Independence of the Judiciary B. Due Process C. Access to Justice D. Protection of Basic Rights VI. CONSTITUTIONAL REFORM PROCESS VII. CONCLUSION I. INTRODUCTION

Like many other countries in the world, the United Kingdom has been modernizing its constitutional arrangements. But, unlike all other countries except New Zealand and Israel, (1) there is no codified written constitution. Laws, regulations, and a network of codes and conventions make up the British constitution--documents that lay the foundation of the relationship between the state and the individual, as well as the structure and function of government.

Since 1997 that unwritten constitution has undergone a radical overhaul. (2) This program of constitutional reform has sought to modernize the electoral system, reform the House of Lords, enact human rights and information rights legislation, and bring about devolution for Scotland, Wales, and London. Taken together, the changes to systems and institutions as well as the establishment of devolved administrations represent the most sustained program of constitutional reform in the United Kingdom for a century and have been described as a "quiet constitutional revolution." (3)

Now the time has come to take stock of these reform efforts. To that end, the challenge is to examine what goals were initially established and ask to what extent the reform efforts have met them. Those goals included steps to renew democracy, rebuild trust, make government more transparent and accountable, decentralize power, and modernize institutions. Additionally, the Lord Chancellor identified another objective as "stripping away confusing traditions, introducing transparent, comprehensible systems of governance," as well as putting to paper the principles of the constitutional democracy as it is and how it has evolved. (4) A constitution and its principles are the foundation of the state. The clarification of those principles for all citizens to see and understand is the crux of the challenge going forward. As a result, it is essential that each individual is able to understand his or her relationship with the government--what to expect from the government and what can be expected from the individual. Taken together, there is, in essence, one purpose for constitutional reform, and the single greatest consequence of that effort will be a modern and renewed democracy for the twenty-first century and by extension a modern and renewed United Kingdom.

It is paramount that lawmakers and citizens alike understand that this reform has not changed the "general principle" of the Westminster system. (5) Rather, this reform has modernized it, adapting and moving it forward into a new century. Consider the following points. First, parliamentary sovereignty continues, but now there is an increased role for the judiciary to determine whether laws are incompatible with the Human Rights Act. (6) And the impact of supranational bodies upon parliamentary sovereignty is a matter of live debate. Second, the principles or values of the constitution have not changed, but they are now more easily identified. Third, the principles of the rule of law and judicial independence are now included in legislation under the Constitutional Reform Act of 2005 for the first time. (7) But again, in keeping with the Westminster system, all of these reforms legally could be repealed by Parliament if it chooses. This preserves Parliament's constitutional sovereignty to make changes to meet future needs. This flexibility can also be seen as a risk that Parliament can turn back this modernization.

Grappling with issues of a national constitution and challenging reform is not unique to the United Kingdom--far from it. Whether a country has a written constitution or not makes no difference. Many countries have undertaken reform for the same reasons as the United Kingdom--to modernize and clarify its structure and principles. In fact, in the last twenty-five years, one hundred countries have reformed their constitutions. The United Kingdom is neither the first nor the last to undertake a modernization process. And given the United Kingdom's position on the world stage and its place in the timeline of human history, these reform efforts are historic and will likely serve as a template not just for others facing similar issues but for the United Kingdom itself as it grapples with new reform challenges in the future.

What is perhaps most challenging, however, in making constitutional modernization a reality are the United Kingdom's history, tradition, and custom. Many post-conflict or transition countries were able to undertake constitutional reform from a clean slate or because of revolution. And while there is plenty of literature that posits how transplanting laws is not a recipe for success, these countries had an opportunity to consider various models for their constitutional reform. Other countries have, with a change of government, taken the opportunity to modernize and change the principles governing society. South Africa, for example, underwent a ten-year process to reform its constitution to reflect a new environment. (8) The former Soviet Union countries reformed constitutions to adopt democracy and a market economy. These nations were changing the relationship between the individual and the state as well as the fundamental infrastructure of government itself. Just because the United Kingdom is working within an existing framework and without an external crisis does not mean that the reforms are any less challenging or historic. It is quite the opposite. The United Kingdom is doing what countries talk about doing but almost never do, namely taking a pragmatic and long view. And 54% of the voters think it is important that their political party has policies that will do well in the long-term. (9) It is much easier to respond to the issues of the day--to tackle what is urgent, forsaking what is important. What could be more important to the welfare and advancement of a nation and its citizenry than a comprehensible constitution? In the process, the United Kingdom is not only setting out to establish new institutions but also to create a change in culture.

So what are these principles that undergird the constitution? As some international measures for constitutional processes indicate, these are principles of an independent common law judiciary, access to justice, due process, protection of basic rights, empowerment and representation of individuals and regions, free and fair elections, devolution, and a system of checks and balances of government. Inherent in these principles is fairness, balance, and transparency. Whether these are written or not, they have guided behavior of the government and the individual. With constitutional reform, many of these principles have been embedded in legislation. The focus of the attention of this Article will be based on two categories of the key principles: good governance (10) and the rule of law. (11)

Since good governance and rule of law have not been defined in legislation, it may be helpful to set out working definitions. There is no world consensus on the definitions, but some multilateral institutions define good governance, for example, through eight major characteristics. Good governance is: participatory, consensus-oriented, accountable, transparent, responsive, effective and efficient, equitable and inclusive, and follows the rule of law. (12) Rule of law may be defined as a system (1) in which the government itself is bound by the law; (2) in which all in society are treated equally under the law; (3) where the government authorities, including the judiciary, protect citizens' aspirations for human dignity, and (4) which is accessible to its citizens. (13) Understanding these concepts is important because today the focus of constitutional reform in the United Kingdom is on reforming, sustaining, and explaining the constitution. (14) This focus requires analysis beyond institutional reform to consider ways to achieve broader social outcomes.

What kinds of outcomes does the public expect? Many countries around the world have undertaken programs to strengthen the rule of law, good governance, and democratic institutions, yet there have been few evaluations carried out of the programs. Today, there is interest in evaluating progress. The logical question is whether these reforms have been successful. What does success mean? Does it mean an increase in the respect for the rule of law or an increase in good governance? Or will it mean that there is greater...