Cross-posted at my constitutional law blog The Cake of Custom
Vernon Bogdanor likes to say that, as a scholar of the British constitution, he makes his living out of something that doesn't exist. Such a comment could not be made by his counterparts in Ireland, France, Germany or the United States. The central question of this book is how far it still holds good for the UK. In the light of the constitutional reforms of recent years and decades, how far does the old unwritten British constitution still survive? What are its prospects for the future?
Our historical unwritten (or, to be pedantic, uncodified) constitution has proved sufficiently flexible to allow for a gradual and peaceful transition from an aristocratic polity under a powerful monarch to a modern representative democracy governed by elected politicians on the basis of universal suffrage. The problem with this arrangement is that the old constitution was largely unexamined and taken for granted. There was never any guarantee that it would keep pace with changing social and political developments, and in some cases it patently failed to do so - one example being the survival of the House of Lords' veto until 1911, which ensured that Irish Home Rule was kept off the statute book until it was too late. By the latter part of the 20th century, the old constitution - while still undoubtedly functional - was showing definite signs of wear and strain. From the 1970s onwards, and particularly under New Labour, a series of changes was set in train that, in Bogdanor's view, changed the old British constitution into something new and different.
The old constitution was based on two specific ideas, one of process, found in the work of Walter Bagehot, and one of substance, found in the work of A.V.Dicey and having its philosophical roots in the writings of Thomas Hobbes. The processual principle was that of organic evolution. The British constitution had developed and grown, unplanned, as a result of historical contingencies. It did not represent the outcome of anyone's blueprint, frozen for ever in a codified document at a particular 'constitutional moment'. As late as 1979, the late Prof. J.A.G.Griffith could write that the British constitution was "no more and no less than what happened". The substantive principle was that of parliamentary sovereignty. Whatever Parliament enacted was the supreme law of the land: it could not be judged by reference to any higher constitutional law or annulled by any court. There was no constraint on Parliament's authority from outside the United Kingdom, and its only remotely serious competitor at home was the ill-fated Parliament of Northern Ireland, which ruled that unhappy territory between 1921 and 1972.
Conservatives by definition supported the old order - but then so did politicians of the left. Old-school socialists like Nye Bevan were firm believers in parliamentary supremacy and showed no enthusiasm for counterbalancing the authority of a left-wing government with a reformed House of Lords, a strong judiciary or devolution of power away from Westminster. The only party that showed much desire to experiment with constitutional reform was the minority Liberal Party, whose motives were transparently self-interested. Admittedly, some politicians took what seem like counter-intuitive positions. The most memorable critique of parliamentary sovereignty came from the Conservative politician Lord Hailsham, who, in a famous lecture delivered in 1976, described it as "elective dictatorship". Similarly, the European Convention on Human Rights (ECHR) was in part the progeny of the Conservative grandee Sir David Maxwell Fyfe, and was adopted only grudgingly by the Labour government in 1951.
Bogdanor's thesis is that the two pillars of the old constitution have been undermined if not subverted. Unplanned evolution has been replaced by explicit programmes of liberal reform, while parliamentary sovereignty stands challenged both from above by the European Union and from below by the devolved legislatures of Scotland, Wales and Northern Ireland. Ironically, as Bogdanor also notes, Parliament has also become more assertive within its own sphere - the Commons is less subservient to the executive than it was in the 50s or 60s, and the Lords has carved out an important new role for itself as an expert revising chamber since the 1999 reform.
The old constitution began to break down in the 1970s, with the outbreak of civil war in Northern Ireland, the rise of Scottish nationalism and the UK's accession to the EEC. Bogdanor rightly nails the myth that the British people were misled by the Heath government into believing that the EEC was no more than a trading bloc which entailed no diminution of national sovereignty. It had been apparent since at least the 1960s, and was made clear at the time, that joining the Community would mean accepting the supremacy of its law for as long as the UK remained a member. It was still, however, a bit of a jolt when, in the Factortame case in 1991, the House of Lords took the unprecedented step of granting an injunction to disapply an Act of Parliament. (This isn't to say, though, that some Eurosceptics' fears about the powers of the EU over the British Parliament aren't exaggerated, as I have argued elsewhere.)
Perhaps a little surprisingly, Bogdanor does not see Britain's EU membership as the 'cornerstone' of the new constitution. Instead, he assigns that role to the Human Rights Act. He notes that the Act is a rather messy compromise between parliamentary supremacy and a US-style bill of rights, and that judges and politicians hold sharply different views about how rights should be protected. He makes the point that the conflict between judges and the legislature that tends to occur in systems with written constitutions has arisen much more quickly in Britain following the enactment of the Human Rights Act than was historically the case in the United States or France (or, he might have added, Ireland).
Bogdanor argues that devolution of power to Scotland, Wales and Northern Ireland (but not England) has led to a "quasi-federal" system. The sovereignty of the UK Parliament over Scotland, for example, has now effectively been reduced on a range of issues to a general power of supervision of the Scottish Parliament. Bogdanor has little time for the West Lothian Question or questions about England's position in the new Union - such issues may be theoretically intractable, but in practice England can get by well enough. He argues that David Cameron's policy of 'English votes for English laws' would effectively mean creating a new English Parliament at Westminster, and will potentially result in the highly unsatisfactory scenario of a government elected on a UK-wide mandate being unable to enact its programme for 80% of the country. He also points out the little-appreciated fact that it is not easy to identify and isolate 'English laws', since any 'English' measure with public spending implications will end up having fiscal consequences for Scotland and Wales.
The devolved legislatures have resulted in coalition and minority governments becoming a standard feature of British political life. It is not always realised that such arrangements were common at Westminster under the old constitution. Coalitions and minority governments were the norm during the first half of the 20th century, and the situation changed only after the Second World War (even then, minority governments held office in 1974, 1977-79 and 1996-97). Nonetheless, as Bogdanor notes, a reduction in the number of marginal seats across the UK means that parties have had to win increasingly decisive victories to secure a majority in the Commons. In the context of a system in which many more people vote for 'minor' parties than was the case in 1945, this means that majority governments at Westminster will become increasingly infrequent - though this process could well be retarded by the current implosion of the Lib Dems.
Bogdanor's observations on the House of Lords are well-informed and interesting. Far from being unfinished business, the reform of the upper house into a modern democratic chamber is a project that has been as much deliberately neglected by politicians of the left as resisted by politicians of the right. Few commentators argue that a country of the size and complexity of the UK would enjoy a higher quality of governance under a unicameral system, but there is no very satisfactory answer to what sort of second chamber we should look for. Bogdanor notes that most countries with bicameral parliaments are dissatisfied with their upper houses. He also observes that there is general satisfaction with the present-day House of Lords, operating as a revising chamber with a reservoir of specialist and often non-political expertise, and that the manner in which the House performs its duties would inevitably change if its composition was altered. Like it or not, a reformed Lords would be composed mostly or entirely of politicians elected on a party ticket who would comport themselves accordingly.
One increasingly important part of the new constitution is the referendum. This device was essentially a creature of the 1970s and an outcome of the need to hold together a split within Harold Wilson's Labour Party over the question of EEC membership. Since then, it has effectively become an alternative means of giving authority to legislation, almost incorporating the electorate as a third chamber of Parliament. As Bogdanor notes, the referendum is a fundamentally conservative device. The Yes to AV campaign recently discovered that it is easier to use it to stop a change that you don't want than to endorse one that you do. This is why Eurosceptics have been so eager to press for referendums on adoption of the Euro, the Lisbon treaty and other measures integrating Britain with the EU. However, New Labour mostly tended to use referendums for progressive purposes - to introduce devolved government in Scotland, Wales and London, and to ratify the Good Friday Agreement in Northern Ireland.
Local government in England is weak and neglected. One reason is the relatively large size of municipal units. French communes have an average population of 1,500, whereas the average English district council serves an area of almost 140,000 people. Another is the rise of partisan politics at the local level, though Bogdanor points out that the era of widespread independent councillors had its own problems. The decline of local government long predates Ted Heath's Local Government Act and Margaret Thatcher's forays into rate capping and abolishing councils that opposed her policies. It can be traced back to the Attlee administration and its conviction that social justice demanded uniformity enforced by a strong central government. Bogdanor also has no difficulty in blaming the voters themselves. If they insisted on holding central government to account for failings in locally administered public services - notably education - they could hardly object when Whitehall elbowed the local town hall aside. Moreover, people can hardly demand localism one moment and damn the 'postcode lottery' the next.
Bogdanor is right that the forms of the new constitution are quite different from those of the old one. One doesn't have to be a paranoid Eurosceptic to believe that the sovereignty of Parliament is not what it was - and a good thing too, many of us would say. But one wonders whether Bogdanor is not exaggerating to some extent. Britain's relationship with the EU is still ultimately governed by a good old fashioned Act of Parliament, the European Communities Act 1972, and the compromise structure of the Human Rights Act seeks to balance parliamentary authority rather than to subvert it. The devolved legislatures have considerable scope for independent policymaking, but the purse strings are still held by Westminster.
More importantly, Bogdanor overestimates the extent to which the spirit of the old constitution has been snuffed out. Evolution rather than revolution is still the order of the day, and most of the changes in recent years have more or less venerable precedents. The Human Rights Act can be traced back to the UK's accession in 1951 to the ECHR, which, as already intimated, was an essentially British document. The devolution project can be traced back further, to the establishment of a separate Scottish Office in 1885 and the tabling of the first Irish Home Rule Bill in 1886. The House of Lords was a busted flush since at least 1911, if not 1832, when it had been strongarmed into passing the Great Reform Act. Referendums were championed as long ago as 1890 by Dicey himself. Even the use of alternative electoral systems has longstanding precedents: the 11 university seats in the House of Commons were elected by STV prior to their abolition in 1950, and in the 1920s STV was imposed wholesale by Westminster on the new parliaments of Northern Ireland and the Irish Free State.
Bogdanor naturally raises the question of whether Britain could or should adopt a written constitution. Our one experiment in this regard, the Cromwellian Commonwealth, was an unhappy episode that has never been repeated. Nonetheless, the idea was toyed with by Gordon Brown before his administration was deluged by the recession, and the new Cabinet Manual which is currently being introduced in Whitehall can perhaps be seen as an intermediate stage to a codified constitutional text. It is not clear, however, what a future written constitution would contain (would it, for example, attempt to incorporate the various conventions which play such a major role in the governance of Britain?), or how it would be enacted.
This is a useful book which manages to be both comprehensive and concise. It deserves to become a standard text on the post-Blair constitution.