Constitutional overview

By Joshua Rozenberg, Legal and Constitutional Affairs Correspondent.

Within a week of the 1997 election, the cabinet had decided to create a Scottish parliament and Welsh assembly; to set up regional development agencies in England and hold a referendum on a strategic authority for London; and to incorporate the European Convention on Human Rights. Before long, ministers also agreed on plans for Freedom of Information legislation and parliamentary reform.

Devolution

The Scottish parliament and Welsh assembly will take control of a wide range of public services currently the responsibility of central government departments and unelected bodies. They will provide a forum for debate about local issues and ensure greater public scrutiny of government.

The Scottish parliament and executive will have responsibility for most aspects of domestic, economic, and social policy, while the Westminster parliament will retain control of foreign affairs; defence and national security; social security; and macro-economic and fiscal matters. The National Assembly for Wales will have the power to make secondary legislation, allowing it to implement primary legislation passed in the Westminster parliament in ways which will suit Welsh needs.

The government has also put forward proposals for extending regional government in England, provided there is popular demand for it. As a first step, there are to be regional development agencies to co-ordinate transport, planning and economic development.

Ministers also aim to revitalise government within London. They are proposing to establish a city-wide strategic authority, consisting of a directly elected mayor and a separately elected assembly, to fill the gap between the London boroughs and central government.

Human Rights

The biggest constitutional change affecting the United Kingdom as a whole is incorporation of the European Convention on Human Rights. At present, Britain is virtually alone among the principal nations of Western Europe in failing to give its citizens a direct means of asserting their convention rights through the national courts. Instead, they have to take the long road to Strasbourg

The key question for ministers in incorporating the convention was to decide its status in relation to other legislation. One of the main concerns was that the judges should not be able to strike down primary legislation which was found to be incompatible with the convention. To do so would constitute a challenge to parliamentary sovereignty. To get round this problem, the government is making two important changes:

• Any minister introducing a bill will have to tell parliament whether it is compatible with the terms of the convention. Where a minister states that he is unable to make a positive statement, that will be a very early signal to parliament that it should look carefully at the human rights implication of the bill.

• Under the Human Rights Act, judges will be required to read legislation as far as possible in a way which is compatible with the convention rights. Where it is impossible to apply a statute in a way which is compatible, the judge will be able to make what will be called 'a declaration of incompatibility'. It will then be up to the government to put to parliament any necessary changes to the law.

Freedom of Information

Ministers fear that confidence in government has been undermined by unnecessary secrecy. Labour's manifesto therefore included a commitment to introduce a Freedom of Information Act, to open up public organisations and make the whole of government more accountable to people.

It will provide for more information held by government bodies to be published as a matter of course. Most importantly, public bodies wanting to withhold information will have to demonstrate that its disclosure would cause substantial harm - not just simple harm or mere harm - to one of a number of specified interests, for example national security or commercial confidentiality. That should mean the system is weighted heavily in favour of openness. It will be overseen by an independent information commissioner, who will have wide-ranging powers, including the power to order disclosure.

Parliamentary reform

The other key part of the programme of constitutional reform is the modernisation of parliament. The Prime Minister has appointed Lord Jenkins to head an independent commission on elections to the House of Commons. The commission has been asked to put forward a proportional alternative to the current first-past-the-post system, bearing in mind the need for stable government, for extending voter choice and for maintaining the link between MPs and their geographical constituencies. The decision on which system to adopt will then be put to the people in a referendum.

In addition to modernising the House of Commons, ministers plan to remove the right of hereditary peers to sit and vote in the House of Lords. The aim is to establish a second chamber that is more representative of the country as a whole, whilst retaining its distinctive independent element.