Assemblies minus instruction manuals

September 15, 1995

David Walker argues that the unwritten British constitution is in dire need of some academic corrections, while Vernon Bogdanor (right) laments the sorry state of local government.

Well, it works doesn't it," said the former Labour prime minister Jim Callaghan, "even if it is on the back of an envelope." "It" is the British constitution and he is wrong on two counts.

This is the year of the Nolan investigation into standards in public life, of Sir Richard Scott's (delayed) inquiry into the sale of arms to Iraq. Opposite, Vernon Bogdanor argues that the only set of representative institutions outside Westminster, the local authorities, are in a sorry state. Just before the break a Tory MP - mark that - introduced a bill to abolish the House of Commons on the grounds that it is completely failing in its principal task of reining in the executive, (see box below).

Lord Callaghan erred - in the way practising politicians do - on a second count. To say that "it" can be written on the back of an envelope is to fall into that rather coy way of thinking about Britain's political and legal system that seems to say, aren't we unique, aren't we historically well-endowed to have this marvellously sinuous thing that can be made up by ministers sitting in the back of a taxi in St James's, or by Cabinet secretaries altering the punctuation in precedent books?

A line of academic inquiry going back into the 19th century supports this. It is one that condescends to the practitioners and players and overly privileges their accounts. Whenever you hear Walter Bagehot, the 19th-century author of The English Constitution, being lauded, beware: he was as ideological a writer as are his successors on The Economist. Sir Kenneth Wheare once said that Walter Bagehot "found" the constitution - "made it up". That is about right, and a good reason why the totemic figure of Bagehot needs reassessment The Bagehot school argues that the British constitution is such a mysterious, venerable thing it may even defy conventional analysis. Because of this, the contribution that "constitutionalists" have made to understanding the way we are governed in Britain has been oddly limited. Much of their writing has had more of the character of celebration than analysis.

Academics are men and women of the printed and corrigible word. That fact of professional life ought to make them intrinsically hostile to something as wilfully unwritten as the British constitution; to the self-interested obscurantism of law-makers who refuse to specify either the limits of their powers or the principles on which they operate. It ought to make those academics interested in politics, law and administration energetic, perhaps even passionate reformers.

Yet, in the postwar period at least, (apart from a brief flurry of reform talk in the later 1960s, commemorating a centenary of parliamentary reform, associated with such people as Bernard Crick) the constitution has tended to escape the analytic schemes of academics and, even with the rise of reforming bodies such as Charter 88, there has been no critical mass behind institutional reform.

When and if civil society gears up in sufficient strength and voice to force the Members of the House of Commons either to commit collective hara-kiri or, better, attempt after 300 years to emulate their 17th-century predecessors and re-equilibrate the power of the legislature and the executive, it will need guides of a kind only serious students of government can provide. But do they exist?

The Economic and Social Research Council is launching a Whitehall initiative, which Sir Robin Butler, the Cabinet secretary, has welcomed. It ought to improve public knowledge of how the civil service operates. But it may also show how little we know of some critical connections - for example between the monarchy and politics. Royal biographer Philip Ziegler says that where Queen meets premier the constitution "has worked on an extremely fluid basis of instantly invented precedents". It is that sort of conclusion which sponors the "back of the envelope" metaphor.

What seems to have defeated analysis is the dynamic, inter-related nature of the British system. Scholarly study has left the constitution in bits. It would be difficult, for example, to fit the Webbs and their work on local government into the line of Victorian and Edwardian constitutional scholarship defined by Dicey. Today the band of academics, including Vernon Bogdanor, specialising in local government, would not be put under a constitutional label. Yet the recent report of the Commission on Local Democracy, with its strong recommendations for change in the scope of local authorities, could not be described as anything other than constitutional in effect.

We know something of the sociology of the law but not much of the constitutional role of judges. For long years constitutional studies were the province of lawyers some of whom, like Lord Chief Justice Hewart, wrote prescriptively. There are of course written documents to go on, whatever the myth of the unwritten constitution says, from the Magna Carta of 1215 to the Act of Settlement to the Treaty of Rome. But English legal thinking did not move into a theory of fundamental "constitutional" rights nor into serious study of the processes of law and precedent-making that deliver the constitution on a day-by-day basis.

One of the largest gaps in constitutional understanding concerns the role of government minsiters, despite the efforts of such academics as Geoffrey Marshall at Oxford and Diana Woodhouse at Oxford Brookes. For example, recently John Gummer, the environment secretary, called the chairman of Yorkshire Water to a meeting about water supplies. Under what authority, by what right?

Norman Lewis of Sheffield University, author of the study Government by Moonlight, says there has been something of a revolution in constitutional studies during the past 15 years. A new generation of academic lawyers who have read their Marx and Weber are cooperating with social and political scientists in studying accountability. For Professor Lewis this has led to sustained criticism of the expansion of the unelected state, the quangocracy.

But even he acknowledges how difficult studying the constitution remains. For one thing it evolves so quickly. Take the phenomenon of judicial review, that interpretation by the courts of decisions made by ministers, councillors and their administrators - a good recent example was the July decision by judges in the House of Lords effectively overturning 20 years of policy on homelessness. Non-lawyers have barely contended with the expansion of judicial review, which is of course "constitutional" for it touches on the powers of Parliament. To say, as some people have, that the growth of judicial review is another example of how, empirically, the British constitution adapts to problems - in this case the discretionary powers of the state - just will not do. It needs study and analysis and probably also, since judicial decisions tend to be unaccountable decisions, reform.

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