Book of the week: The New British Constitution

Anthony King watches Britain inching towards a new constitution

August 13, 2009

During the past couple of months, talk of constitutional reform has become all the rage. The fact that a lot of MPs have been caught with their hands in the till appears to have persuaded our political masters that we need to reform parliamentary procedures, introduce a largely or wholly elected House of Lords, elect far more public officials, hold more referendums and possibly even reform the electoral system. It goes without saying that none of these changes - however desirable or undesirable in their own terms - has anything to do with MPs' expenses, nor would any of them be likely to restore public confidence in politics and politicians. The public's loss of confidence has far more profound sources than Daily Telegraph headlines.

Vernon Bogdanor's new book is thus timely. It is also unusual. Most books on the British constitution are either descriptive and analytic, focusing on changes that have already taken place, or else prescriptive and hortatory, urging the need for changes in the future. The New British Constitution is unusual in being a double helix, with descriptive and prescriptive strands intertwined. It is certainly none the worse for that. The author knows what he is talking about, as well as - most of the time - what he wants to see happen.

On the purely descriptive and analytic side, Bogdanor has relatively little to say about the constitutional implications of Britain's membership of the European Union, and even less to say about the institutions of UK central government. He concentrates, instead, on the Human Rights Act, which he describes as "the cornerstone of the new British constitution", the operation of the three devolved executives and parliaments, the future of the House of Lords ("the present 'temporary' state of the House of Lords may remain for longer than many imagine"), the use and abuse of referendums and the government of London (of which, as currently constituted, he takes a dim view). On the subjects he does choose to tackle, he is well informed, subtle and immensely thorough. This is not just a book to read, it is one to keep on the shelf for reference. Anyone remotely interested in the constitution, including all the main party leaders, should certainly acquire a copy.

The author alerts interested parties to the dangers, and also the opportunities, inherent in the current tension between the long-established doctrine of parliamentary sovereignty and the continuing expansion of rights-based law. The two cannot be dominant at the same time, and the tension will inevitably yield - as it has already yielded - conflict between democratically elected politicians, with their mandate to govern in the national interest on behalf of the people, and unelected judges, with their legitimate claim to uphold the rule of law irrespective of tabloid prejudice, political pressure and, in the end, even the people's wishes. As Bogdanor says, the procedure for appointing judges has become insulated from political pressure - and it will be crucial to keep it that way.

Bogdanor is at his best on the subject of "English votes for English laws", one of the pet schemes of many in today's overwhelmingly English Conservative Party. He clearly regards the whole idea as batty. Few in England want an English parliament. Elected by more than 80 per cent of the UK's population, such a parliament would inevitably rival - and perhaps overwhelm - the UK Parliament. Prohibiting non-English MPs from voting on laws intended to apply only to England could easily mean UK ministers being in government on some issues but in opposition (possibly on the same day) on others. Not least, England forms such a large part of the union that much, probably most, of seemingly "English" legislation has, potentially at least, enormous spill-over consequences for Scotland, Wales and Northern Ireland. The Conservatives need to make up their minds whether they are still in favour of the union or not. It should give them pause that the Scottish National Party (SNP) thinks English votes for English laws is a splendid idea.

Bogdanor devotes a chapter to what might happen in the event of a hung UK parliament, pointing out that the election of such a parliament is now far more probable than in the past, given the substantial contingent of Liberal Democrat, SNP, Plaid Cymru, Northern Ireland and even independent MPs that now adorns the green benches. Post-election bargaining among the parties, with the shape of governments ultimately determined by party leaders rather than voters, is already a feature of Scottish and Welsh politics. It could become a feature of UK politics. If it does, the ancient constitutional doctrine of "collective ministerial responsibility" may have to be put in cold storage.

Where do we go from here? Bogdanor has no doubt that, thanks to such developments as the Human Rights Act and devolution, we already have a new constitution, far removed from the one that prevailed during most of the 20th century. He also has no doubt that future constitutional development is both inevitable and desirable. He believes that, as a matter of fact, the UK is "moving in a tortuous and crab-like way towards establishing real constitutional principles, towards becoming a constitutional state": that is, a state with a codified constitution entrenching limits on the powers of both governments and popular majorities. He also believes, as a matter of normative preference, that such a state should also be "a popular constitutional state", with the emphasis on "popular": a state in which large swaths of power are shifted from the politicians to the people.

Partly as a consequence of his own intellectual honesty, the author's lines of argument in the last three chapters of his book ("Beyond the new constitution") become more tentative and ultimately less convincing. He clearly yearns for a time when the UK will be blessed with a codified constitution, but he does not explain why he thinks that a UK blessed with such a constitution would be a better governed country or a better place to live in. In any case, and despite himself, he clearly believes that the substantive scope of a codified constitution would be hard, perhaps impossible, for the political community to agree upon, that no one knows who would have the authority to draft any such constitution and that, in truth, the UK is most unlikely in the foreseeable future to acquire a constitution of the kind he advocates. His pessimism on this point is profound. For the time being, he says, "there seems little point in drafting or enacting a constitution".

On the issue of transferring power from the politicians to the people, he is also more tentative than he would clearly prefer to be. He does not really explain why such a transfer would be desirable. Nor does he show how such a transfer would be compatible with the judges continuing to amass greater powers in an increasingly rights-based constitutional system (a system of which he strongly approves). And he does not conjure with the possibility that greater popular participation in government might, in the end, be to the detriment of good government. The New British Constitution is a formidable and invaluable achievement, but at some points - only some - its intellectual foundations seem a trifle wobbly.

THE AUTHOR

Vernon Bogdanor, professor of government and fellow of Brasenose College, Oxford, says he has made his living from "a subject that does not exist - the British constitution".

An acknowledged expert in the field, as evidenced by the title of Commander of the Order of the British Empire for services to the subject, he does not shy away from controversial views.

He supports the retention of the monarchy and backs a proactive approach to the spread of liberal democracy throughout the world, including by military force where necessary.

His main hobby is music, confessing that he is "a fanatical but indifferent pianist". He enjoys playing, he says, not for the "cliche" of relaxation, but because "it requires a kind of concentration quite different from concentration upon academic work".

The New British Constitution

By Vernon Bogdanor

Hart Publishing 334pp, £45.00 and £17.95

ISBN 9781841131498 and 36714

Published 3 June 2009

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Reader's comments (1)

What on earth is the British Constitution?

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