Sift, stir and reconstitute

Politics and the Constitution - Power and the People
July 25, 1997

It is a reviewer's cliche to say that a book is timely; but Vernon Bogdanor's latest book, Power and the People, subtitled "A Guide to Constitutional Reform", could not have been published at a better moment. The British, with their disposition to take pride in their lack of a written constitution, are inclined to yawn at the very mention of constitutional reform - except for those who are enthusiasts for it. But in recent years there has been a rising tide of wider interest and concern, partly stimulated by those, like Bogdanor, who have kept the key issues on the public agenda.

Events have strengthened the hands of the would-be reformers. The political development of the European Union has been gathering pace along the road from Maastricht to Amsterdam and increasingly affects the constitutional position and powers of Parliament. Scotland and Wales, with varying degrees of enthusiasm, return this autumn to the challenge of the devolution of powers from the Westminster Parliament. The future of the monarchy attracts unremitting media attention and has been the subject of large-scale public debates. And now we have a British government in power, and with a large majority, committed to constitutional change: devolution to Scotland and Wales, preceded by consultative referendums; the reform of the House of Lords; electoral reform; and constructive, though cautious, cooperation with our partners in the European Union, which could limit further the sovereignty of Parliament.

These are all issues of the first importance, offering the possibility of major changes which could, as Bogdanor would put it, bring about at least some transfer of power from the government to the governed. For members of the public and, more specifically, for school and university students, he is a stimulating tutor. Power and the People provides a clear and succinct account of the current constitutional agenda in a short and readable book that displays the professor's mastery of his subject, on which he has become a popular media pundit. Politics and the Constitution was published a year earlier. It is composed of essays drawn from published writings of recent years and is more academic in character; but it complements Power and the People by dealing, in a historical context and in greater detail, with a wider range of constitutional matters.

The introduction to Power and the People highlights the core of the case for constitutional reform by quoting from Lord Hailsham's notable Dimbleby lecture of 21 years ago, "The elective dictatorship": "I have reached the conclusion that our constitution is wearing out. Its central defects are gradually coming to outweigh its merits, and its central defects consist in the absolute powers we confer on our sovereign body, and the concentration of those powers in an executive government formed out of one party which may not fairly represent the popular will."

In discussing electoral reform Bogdanor rubs this charge home. He points out that the last government to secure over half of the total vote in a general election took office over 60 years ago, explaining that the average percentage of votes gained by the winning party in the general elections between 1974 and 1992 had fallen to 41.2 per cent. The new Labour government commands a majority of 179 seats in the House of Commons, but it secured only 44 per cent of the votes in the general election. His quotation of statistics leads to a telling paragraph: "Giving power to the strongest minority is more worrying in Britain than it would be in most democracies since we are one of only three democracies in the world - the other two being New Zealand and Israel - without a codified constitution. We are also now almost the only democracy in the world which offers no constitutional check or balance to the power of government - no constitutional court, no federal system, no powerful second chamber and a weak system of local government, hardly capable of resisting the depredations of the centre. It is the absence of constitutional checks which makes British government omnicompetent . . . An omnicompetent government supported by a minority of the voters is difficult to reconcile with the canons of either democratic or constitutional government."

Thus the prospect of any constitutional reform crucially depends on what "an omnicompetent government" is prepared to do and, assisted by its majority, to carry through Parliament. There is always likely to be a gap between what is theoretically possible and academically appealing and what is politically practicable for a government in power, exposed to the pressure of events and with competing priorities in its legislative programme. But we are in a new situation. Both the books under review were written before the present government came into office on May 1. It is not surprising that they do not go beyond outlining possible changes and their implications; and that they reflect no immediate prospect of their implementation. In the final chapter of Power and the People the tone is somewhat gloomy: "Democracy in Britain today is predicated upon the passivity of the vast majority of the country's citizens. The role of the people is limited to that of consenting or withholding its consent to the government of the day at periodic intervals. The British constitution has become a system for selecting, maintaining and dismissing a governing elite, the leaders of the ruling party. For government in Britain today is fundamentally party government . . ."

As the chapter points out, the use of the referendum and electoral reform could have the potential to open up party government to popular control; but, under the Conservative government, there was no immediate prospect of either.

Bogdanor sees the party system and its rigidity as a major obstacle to constitutional reform. So, to some extent, it is bound to be, in the sense that any elected government will be cautious about introducing changes - in the shape, for example, of devolving powers or electoral reform - which would weaken its prospects of staying in power or its ability to govern effectively. But it is what Bogdanor calls "the vicissitudes of party politics" which have brought the Labour government into power with its commitment to constitutional change. Furthermore, the divisions within the Conservative party over the country's future in the European Union suggest that, notwithstanding the intentions of the new party leader, there may even emerge some realignments within the party system, such as have occurred in the past.

It was the possibility of a change of government and consequential measures of constitutional change which led a group of foundations and trusts to set up, in April 1995, the Constitution Unit, with the task of conducting independent inquiries into the implementation of constitutional reform. Its work was focused chiefly on the means of achieving reform rather than on its substance. The unit has now been disbanded after publishing 12 reports on all the different elements of possible change, including in particular the reform of the House of Lords, a Scottish parliament, a Welsh assembly, changing the electoral system, and the conduct of referendums. These reports (copies of which are now held in the law faculty of University College London) were published ahead of Bogdanor's new book; and, complementing the latter's up-to-date guide to the principal issues, they offer the government practical advice on how ministers should now set about fulfilling their constitutional commitments.

How optimistic can we be about what the government will achieve? Subject to the outcome of the two referendums, the government is firmly committed to the establishment of a Scottish parliament by May 1 1998, and a Welsh assembly as soon as possible. Bogdanor convincingly shows that reforming the House of Lords would be a premature step, which would create new problems as it proceeded to resolve old ones; he concludes that it may be best for it "to survive by default". The recent experience of New Zealand shows clearly that there is no quick fix for electoral reform, and that the result of consulting the electorate through a referendum, or a series of referendums, may well bring no political benefit to the government in power. A government which is determined to secure a second term in office is likely to play it long.

Politics and the Constitution includes essays, in a constitutional context, on ministers and civil servants and on local government. It refers to "widespread confusion and anxiety concerning the future of the civil service and relationships between civil servants and ministers". That tends to over-dramatise the situation, but there is certainly a case for considering the introduction of an ethical code to govern the relations between ministers and their officials. At the same time, positive leadership by the prime minister and his cabinet colleagues, if they are ready to give it, could improve morale in the public sector and re-establish the interdependent partnerships which have existed in the past between ministers and officials in the upper reaches of government. Bogdanor rightly comments on the grey area in which responsibilities are divided between the "Next Steps" agencies and departmental ministers. Here too a published code may prove helpful. Circumstances can always alter cases, but there should by now be no misunderstanding about ministerial responsibility for the policies, and for the systems approved for implementing them, and the agencies' responsibility for the effective implementation of the policies through the efficient operation of the approved systems.

A penetrating essay on local government and the constitution ends with the following provocative question to which a positive answer cannot be given: "And yet, is there any reason why we ourselves cannot recreate our system of democratic self-government with the same self-confidence and determination as our Victorian forbears displayed over a hundred years ago?" But there is no space in this short review to discuss the reasons why the relations between central and local government have become complex and unsatisfactory. We must also recognise that the concept of local democracy today goes wider than elected local government - as shown by the local governance of schools, and in displays of public protest which reflect impatience with, and occasionally contempt for, what elected authorities can deliver.

It may be partly recognition of these expressions of frustration which have led Bogdanor to doubt whether the current constitutional reform agenda will be sufficient "to satisfy popular aspirations". It is difficult, however, to know what "popular aspirations" amount to when, as the final chapter of Power and the People points out, there is "considerable political disenchantment with politics, a disenchantment which is especially marked among young voters." But the party and electoral systems, for all their defects, have brought a government to power which is committed to getting constitutional changes on the move; and we must now wait and see. More intense public debate lies ahead; the devolution campaigns will stimulate fuller public participation; the options for electoral reform will eventually be prominent on the public agenda. No voter will be able to ignore the constitutional aspects of government; and Bogdanor can be expected to play a full part in promoting public understanding. Perhaps we can now put out of our minds Alexander Pope's often quoted lines: For forms of government let fools contest; Whate'er is best administered is best.

The Rt. Hon. Sir Patrick Nairne, formerly master, St Catherine's College, Oxford, was chairman, Commission on the Conduct of Referendums (The Constitution Unit), 1996.

Politics and the Constitution

Author - Vernon Bogdanor
ISBN - 1 85521 760 0
Publisher - Dartmouth
Price - £39.50
Pages - 6

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