In 1974, the Cabinet Office established a ‘Constitution Unit’ following a difficult birthing process, which operated until the election of the Thatcher government in 1979. It was this Unit that inspired our own founding Director, Robert Hazell, when naming the newly-formed Constitution Unit 25 years ago. As part of this latter Unit’s 25th anniversary, Joseph Ward examines its earlier namesake, its founding and work, and what lessons we can learn from its role within government.
The 1970s was a decade marked by rising distrust in Britain’s political institutions. Intransigent governing problems, from inflation to nascent nationalism, fuelled a narrative that Britain was in crisis. Commentators in both academia and the press talked of a crisis of ‘governability’, with the state seemingly unable to keep pace with the demands placed on it by the public.
In response to these trends, the Wilson government(s) of 1964–70 and 1974–76 instigated a series of constitutional reform measures. After creating the Kilbrandon Commission on the Constitution in 1969, Wilson sought to revisit the findings of the inquiry once returned to government in 1974, creating a bespoke Constitution Unit within the Cabinet Office to implement proposals for devolution to Scotland and Wales in particular. This ‘Constitution Unit’ was the conscious inspiration for the name adopted by UCL’s Constitution Unit when it was founded by Professor Robert Hazell in 1995, and which is currently celebrating its 25th anniversary.
This blog post examines a selection of the Constitution Unit records held at the National Archives to document how the unit came about and to consider the struggles within the state over its remit. The political turbulence of that period, especially after James Callaghan succeeded Harold Wilson in 1976, presented the Unit with many challenges, as did the magnitude of its task. The post concludes with some reflections on the origins of the Unit to consider any lessons it might hold for constitutional reform in the contemporary context.
Foundations: The Kilbrandon Commission on the Constitution
In response to significant by-election wins for Plaid Cymru and the Scottish Nationalists in the late 1960s, Harold Wilson set up a Royal Commission on the Constitution in 1969, tasked with examination of ‘the present functions of the central legislature and government in relation to the several countries, nations and regions of the United Kingdom’ (Cmnd. 5460: 32). Its course was characterised by turbulence and disagreement: the commission took 4.5 years to report, more than one member resigned before it completed its work and the initial Chairman, Lord Crowther, died in 1972 midway through the inquiry.
When the report was eventually published under the supervision of Lord Kilbrandon in October 1973, it was in tandem with a memorandum of dissent from two members, Labour peer Lord Crowther-Hunt and Professor A.T. Peacock. A discussion of these disagreements would constitute a blog in itself, but, in short, they centred on what has come to be known as the ‘West Lothian question’, with proposals for legislative devolution to Scotland and Wales deemed to grant ‘additional political rights which would be denied to the people in the different regions of England’ (Cmnd. 5460-1: 620).
Whilst some of the Commission’s work influenced the Heath government’s attempts at constitutional reform in Northern Ireland, it was the continued ascent of nationalist parties at the February 1974 election that led Wilson to seriously consider its proposals once re-elected. Consultations began immediately, with Crowther-Hunt recruited to undertake discussions with minority parties in Scotland and Wales throughout the spring and summer of 1974.
Analysis of archival records reveals how, the day after Wilson announced a second election was to be held in October, Lord President of the Council Edward Short contacted Cabinet Secretary John Hunt to propose the formation of a ‘unit concerning itself with the “structure of government” to consider possibilities for improving the decision-making apparatus available to Ministers’. This would become the Cabinet Office Constitution Unit (COCU), which would operate from 1974–79.
Making the Case: The Origins of the Cabinet Office Constitution Unit
In his initial memo, Short suggested longstanding economic issues such as management of public expenditure might comprise part of the unit’s remit, along with the ‘acutely complex “constitutional” issues’ with which the government was already engaged. Referring to the organisation and capacity of the state, he stressed that ‘whatever Government is in power these problems will increase over the next 5-10 years’. The commitment to the creation of Scottish and Welsh assemblies in Labour’s October 1974 manifesto made the case for a dedicated unit more pressing.
In Short’s view, a central obstacle to addressing these structural problems had been the ‘lack of ministerial involvement’ in units such as the Central Policy Review Staff (CPRS), with a need for the priority and responsibility afforded by ministerial oversight to drive them. He identified three ‘major constitutional issues’ requiring attention: devolution, the relationship between parliament and the EEC, and the relationship between ‘the churches and the state’ – particularly the appointment of bishops, the attendant impact on Lords reform, and the possibility of disestablishment.
Writing to the Prime Minister, Short suggested that the unit be set up in the Cabinet Office under Hunt, enabling it to ‘establish good relations’ with other departments, but to:
‘…acquire an identity of its own, untrammelled by the functional responsibilities of a major Department. It would be within the Whitehall machine, but a slightly abrasive element in it. I think it might usefully include outsiders as well as civil servants of the highest calibre’.
Whilst Short focused on what he called the ‘machinery for collective decision-making’ as well as the various constitutional issues, civil servants were keen to keep these matters separate. Hunt recommended that Wilson maintain this separation, noting that other vehicles such as the CPRS were in place for central coordination, but endorsed the idea of creating a team within the Cabinet Office ‘to handle the devolution legislation and related constitutional questions’. Furthermore, Hunt noted that the appointment of a senior minister to oversee changes to the decision-making process might cause friction, with a single individual effectively becoming ‘Mr. Super O & M’.
Wilson heeded this advice, agreeing, if re-elected, to create a new unit overseen by a Second Permanent Secretary under the supervision of the Cabinet Secretary. Wilson also suggested Lord Crowther-Hunt be closely associated with the unit as the government’s constitutional adviser.
However, it was clear that other senior civil servants were also uncomfortable with the COCU’s remit reaching beyond devolution. Conscious of conflicts within Whitehall, particularly with the ‘Machinery of Government Group’ in the Civil Service Department (CSD), a note on election preparations suggested that other constitutional issues were not connected and were already ‘handled elsewhere in the Whitehall machine’. Accordingly, officials stressed a preference for naming it the ‘Devolution Unit’ rather than the ‘Constitutional Unit’.
The proposed resolution was something of a fudge, with Hunt, Head of the Civil Service Douglas Allen, and the Second Permanent Secretary at the CSD, Ian Bancroft, meeting on the eve of the October general election and concluding that ‘the main thrust of the Unit’s work will be on devolution’, and that ‘Ministers will not be encouraged to give some of the other items (apart from devolution) great priority’.
On the announcement of a slim Labour majority, Allen directly expressed this to the Prime Minister’s office. Allen noted that ‘if House of Lords reform becomes an issue’, then the COCU should take it on, along with issues pertaining to opposition finances and research assistance for backbenchers. On disestablishment of the Church, and parliament and the EEC, however, Allen suggested that the unit have only a limited role, with the former remaining primarily under the Home Office, and the latter within the existing Cabinet Office EEC Unit.
On 14 October, Wilson gave the go-ahead, with Short given ministerial responsibility for its work as continuing Lord President. This was followed by the appointment of John Garlick as the COCU Second Permanent Secretary, who transferred from planning and local government at the Department of the Environment.
The Cabinet Office Constitution Unit: Contemporary Lessons
Though it was clear that the new government faced several constitutional questions, the priority and complexity of devolution ensured this comprised the vast majority of the unit’s work. Even when confined to this task, the COCU had to create a series of Working Groups on different aspects of devolution in order to manage its extensive remit. These groups tackled huge questions, such as the balance of powers between Westminster and the prospective Welsh and Scottish assemblies, the operation of legislative and executive functions within the assemblies, and the process of electing assembly members.
With regard to other issues, the COCU was limited to a ‘watching brief’, ensuring that other reforms were not ‘out of step’ with the devolution proposals. In this capacity, officials were tasked with considering the possible impact of differential results in the 1975 EC referendum, assessing how a UK-wide vote to remain and a Scottish and/or Welsh vote to leave might ‘strengthen the separatists’, especially in the former. On this, the government had to strike a difficult balance, as it sought to maintain support for its proposals for assemblies in Scotland and Wales, but to avoid accentuating divisions between the constituent nations of the UK.
Whilst it might be argued that the COCU was ultimately successful in drafting together implementable devolution proposals within two years, the failure of the measures to overcome first parliamentary and then popular opposition was indicative of the context in which it operated. Despite undertaking an extensive and detailed programme of work, the COCU was ultimately undermined by the political turbulence surrounding it. It is perhaps an irony of the episode that the conflict and uncertainty that drove the initial impulse for constitutional reform was also the source of its downfall. After Margaret Thatcher’s victory in the 1979 general election, the Scotland and Wales Acts were repealed and responsibility for consideration of the government of Scotland and Wales was returned to the relevant departments.
The circumstances surrounding the origins of the COCU as well as aspects of its operation highlight a number of questions and issues for contemporary constitutional reform. These are particularly apt to consider in light of the current government’s proposals for a Commission on the Constitution, Democracy and Rights.
The context has changed enormously since the days of the COCU, not least in the allocation of departmental responsibilities. In the 1970s responsibility for different aspects of the constitution was scattered between half a dozen different departments. That was still the case when the Blair government came into office in 1997, and established the Constitution Secretariat in the Cabinet Office (COCU’s direct descendant) to coordinate its ambitious constitutional reform programme. Its success in delivering devolution, Lords reform, the Human Rights Act, and Freedom of Information Act all in its first term was largely thanks to the Blair government’s huge majority, but also the product of careful planning and coordination, overseen by ministers through a raft of Cabinet Committees.
What has changed since is that the Cabinet Office, instead of simply coordinating, has become the department in charge of all matters constitutional. Its Constitution Directorate now has over 100 staff, and is responsible for elections and referendums, the monarchy, church and state, devolution, democracy and human rights, all overseen by the Cabinet Office Minister Michael Gove, supported by Chloe Smith as Minister of State for the Constitution and Devolution. It makes sense functionally to bring all the constitutional functions together in one department, but one consequence is a narrowing and centralisation of ministerial responsibility. There is no Cabinet Committee to share responsibility with other ministers save the general Domestic and Economic Affairs Committee, and a Committee on the Union whose only members are Michael Gove, the three territorial Secretaries of State and the Chancellor of the Exchequer.
The author wishes to thank Professor Robert Hazell for comments on an earlier version of this post.
To mark the 25th anniversary of the Constitution Unit we have launched a special fundraising initiative, encouraging supporters to make donations incorporating the figures 2 and 5. If you value our work, and would like to contribute to its future continuation, please consider making a one-off or regular donation. Contributions are essential to supporting our public-facing work. Find out more on our donations page.
Sign up to our mailing lists, for news of events and publications, or to our blog, here.
About the author
Joseph Ward is a doctoral researcher in the department of Political Science and International Studies at the University of Birmingham. He recently published an article on the May government’s management of the Brexit process in Parliamentary Affairs. He tweets as @JWard232.