A short 100 years of long weeks

The British Constitution in the Twentieth Century
July 30, 2004

This book is a collection of 16 excellent essays, exploring between them the changes that different institutions and practices of the British constitution have undergone in the course of the previous century.

It carries a valuable introduction by editor Vernon Bogdanor that, unconventionally but wisely, introduces the theme rather than the essays, and a fascinating but tantalisingly short conclusion highlighting the important trends of British political life. Although the essays do not speak to each other, they share a common structure. Each begins with a brief account of the state of play at the beginning of the century, traces the changes during it and concludes with a short summary of the current situation and likely developments.

Since the constitution is largely defined in terms of institutions and practices, several important themes receive only passing attention. There is not much discussion of the organisational structures and ideologies of political parties, the changing role of the media and the way they have tended to marginalise Parliament, forms of political participation, and the changing popular interpretation and appropriation of national symbols. Rather surprisingly, there is little systematic discussion of 20th-century British political, juristic and constitutional thought, and the ways in which it has articulated and influenced constitutional practice. And despite brief hints by Brigid Hadfield, Robert Holland and the editor himself, there is little attempt either to provide a coherent story of 20th-century constitutional developments, or even to locate them in the overall constitutional history of Britain and highlight their continuities and discontinuities. These and other minor blemishes do not, however, detract from the excellent work Bogdanor and his distinguished team have done. I know no other volume that comes anywhere near it in depth and range. It is bound to remain a reliable and indispensable source of reference for quite some time.

While a week is a long time in politics, as Harold Wilson memorably put it, for a constitutional historian, tracing the long gestation of institutions and practices and examining why some of them eventually fade away and others graft and decisively alter the political physiognomy of the country, even a century can be a relatively short unit of analysis. The British constitution is a good example of this.

In some areas, the constitution in 2000 differs little from the constitution in 1900. Although the monarchy has taken a few blows and lost some of its mystique and powers, it remains the cherished symbol of national identity and enjoys the support of more than 70 per cent of the British people. The century began and ended with two dominant political parties - the third in each case looming over the political horizon but with an unforeseeable future. The debate on the structure and powers of the House of Lords that began in the early years of the last century remained unresolved at its end.

In 1900, peers addressed each other in the Chamber as "my Lords"; they still do that, even though a fifth of the House of Lords now consists of women. Although Parliament includes the House of Lords, peers are still not allowed to call themselves Members of Parliament, a constitutional quirk that baffles and amuses foreigners. And although the House of Commons now has all the financial powers, peers are not allowed to vote in Parliamentary elections. It seems that even after two centuries, our constitutional practice has not caught up with the principle of "no taxation without representation" that cost Britain its American colonies.

In other areas of the British constitution several important changes occurred during the 20th century. The House of Commons is now far more effective and better organised and disciplined, as Paul Seaward and Paul Silk point out in their essay. The civil service is more impartial, professional, efficient and managerially oriented, as Bogdanor shows. In 1900, the Cabinet was the decision-making body; a century later, decision-making is highly personalised and fluid and the Cabinet is often bypassed by Number 10 and the Treasury, as Anthony Seldon shows.

The doctrine of ministerial responsibility has been rationalised and made both sharper and less confused, and administrative law, long regarded as inconsistent with British democracy, is being introduced in one form or another, as Diane Woodhouse and Jeffrey Jowell argue in their respective essays. The referendum, long dismissed as a populist continental device, was first introduced in 1975 as a temporary political expedient and has now become an important part of British political life. However, although generally used in relation to matters involving the transfer of parliamentary powers, it is not subject to clearly established conventions.

A part of our practice, it is not yet a part of our constitution.

Thanks to Britain's uncodified constitution, which happily leaves room for unexpected innovations, the House of Lords has reinvented itself and enjoys a kind of legitimacy unimaginable in 1900. It is increasingly reincarnating itself as a house of experts, scrutinising parliamentary and European legislation with the care and skill not possible in the Commons. It sits longer and more often and is better attended than ever before, and it now has an elaborate and effective system of select committees on issues of public policy. Thanks to all this, the House of Lords is paradoxically emerging as the guardian of some of the basic values of British democracy, such as individual liberty, the rule of law and legislative clarity, and is acquiring a new moral and political authority.

In 1900, senior judges were political appointees. As Lord Salisbury put it, it was the "unwritten law of our party system" that "party claims" should determine the highest legal appointments, and that a "Tory mentality was ipso facto more trustworthy than a liberal one". The political appointment of judges, which continued for much of the 20th century, though not in such a crude and blatantly partisan manner, is now being replaced by an independent Judicial Appointments Commission.

In several areas, the constitutional changes are deep and decisive and signify a radically new direction. For example, for the first time in British history, the judiciary is emerging as a truly third branch of government. For a long time in the shadow of the executive and Parliament, it has been too trustful of the former and too wedded to the doctrine of Parliamentary sovereignty to challenge either. It is now increasingly shedding its subordinate status, and sees itself as an independent organ of government, enjoying a broadly equal status with the other two. Although there were signs of this happening in the 1970s, the new judicial self-understanding gained momentum during the 1980s, as Robert Stevens and David Feldman point out in their essays.

It occurred as a reaction to Margaret Thatcher's market fundamentalism, high-handed and personalised rule, interference with the rights of the courts, including the then Home Secretary Michael Howard's attempts to lay down mandatory sentences, and the absence of an effective Parliamentary opposition. In a widely discussed public lecture in the early 1990s, Lord Woolf indicated situations in which judges could and would question Parliamentary sovereignty, and was supported by Lord Justice Laws, who talked of a "higher law" than the will of Parliament. Lord Justice Sedley even talked of a "bipolar sovereignty of the Crown in Parliament and the Crown in the Courts", each equal in authority and to both of which ministers were accountable.

Judicial assertion of independence would not have prevailed if public opinion had not welcomed and conferred legitimacy on it, and if the country had not increasingly begun to appreciate the importance of a clearly stated regime of rights. Once it was accepted, its implications - such as the establishment of the Supreme Court, the reassessment of the place of the law lords in the House of Lords, and the rationalisation of the bewilderingly triple role of the Lord Chancellor - could not be long resisted.

The second important trend has to do with the increasing centralisation of power in England and consequent decline in the independence of local government. In his magisterial Local Government in England (1903), Josef Redlich shared the prevailing view that "England is predominantly the country of local government", and argued that 19th-century reforms had rightly consolidated the "English idea of the state as an association or federation of self-governing communities".

The welfare state, which aims to provide uniform provision throughout the country, national planning, social and geographical mobility, strong party discipline, and so on, meant that local authorities could no longer continue as historic communities with identities of their own. But their role could have been redefined and their independence and vitality preserved within a suitably reconstituted political framework. That did not happen. For their own different reasons, the two major political parties stressed the role of central government, despised and diminished that of local authorities, and turned them, as Martin Loughlin puts it, into the agencies of central policy.

Local authorities, seen hitherto as the building blocks of the state and loci of robust civic identities, count today for little. There is deep unease about this, but no political party has a coherent and realistic view of proper relations between local and central governments. As the increasingly remote and impersonal state faces its privatised citizens without traditional mediations, the question of how to arrest their inevitable alienation and powerlessness, and foster a much-needed culture of active citizenship becomes particularly disturbing.

Finally, British political culture is undergoing a momentous change. Long articulated in the language of liberty, it is now being recast in the language of rights, partly because the bulk of the British people have come to appreciate the importance of the culture of rights, and partly because of Britain's membership of the European Union. The language of rights is the standard currency in Europe, and its influence is reinforced by Britain's incorporation of the European Convention on Human Rights in domestic law.

Although cultures of liberty and rights overlap, they rest on different assumptions, and have different conceptual and institutional implications.

Liberty requires that the law should be silent, whereas rights are explicitly granted by it. Liberties are not generally graded, especially in the common law tradition; among rights, some can be more basic than others.

Parliament is free to curtail liberties but not basic, fundamental or human rights. Liberty and rights give the judiciary an important role, but the nature of the role is different. For these and other reasons, rights are state-centred and call for a clear conception of the state, which Britain does not have. They also extend to all areas of life, such as the rights of patients, consumers, clients and children, requiring in each case that the institutions involved be designed to protect human rights.

This is a welcome but wholly new experience for Britain. The fact that the language of human rights is associated with Britain's membership of the European Union has, in some quarters, generated a degree of hostility to it. But as rights get indigenised and give rise to a new political culture based on a subtle interplay of the European tradition of rights and the English tradition of liberty, the British way of life will look quite different from the way it does now. That will inevitably affect the quality of its democracy and the structure and practices of its constitution in ways on which we can at present only speculate.

Lord Parekh is professor in the Centre for the Study of Democracy, Westminster University.

The British Constitution in the Twentieth Century

Editor - Vernon Bogdanor
Publisher - Oxford University Press
Pages - 795
Price - £21.99
ISBN - 0 19 726319 4

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