Vol. 15 No.6 (June 2005), pp.531-536
THE BRITISH CONSTITUTION IN THE TWENTIETH CENTURY, by Vernon Bogdanor (ed.). Oxford: Oxford University Press, 2003. 816pp. Hardback. £55.00/$95.00. ISBN: 0197262716. 2004. Paper. £21.99/$29.95. ISBN: 0197263194
Reviewed by Thom Brooks, Department of Politics, University of Newcastle
Vernon Bogdanor is one of the most important authorities on British politics. This collection no doubt benefits both from his scholarly acumen, as well as his considerable ties with similar major names in the field. The contributing authors reads much like a who’s who list of figures defining the study of British politics: John Curtice, David Feldman, Jeffrey Jowell, Robert Holland, Geoffrey Marshall, Paul Seaward, Anthony Seldon, Paul Silk, Robert Stevens, and Diana Woodhouse, amongst others contribute papers across eighteen chapters. At over eight hundred pages, this is a rather considerable volume exploring all issues of British politics from issues in Britain’s electoral system and governing structures to Britain’s relationship with Europe and the Commonwealth.
There is to my mind no other work that so comprehensively considers the British constitution in all its richness. As the Queen is quoted at the beginning of the volume—“The British Constitution has always been puzzling and always will be” (p.v)—political and legal theorists (and not only Americans) have been puzzled by Britain’s unwritten (or, in the words of Bogdanor, Britain’s “uncodified”) constitution (p.5). Several items are far from clear in such a political system. For example, as Bogdanor notes, what exactly is the role of the Cabinet? We learn that the modern Cabinet did not begin to exist in any identifiable form until the 1900s. Before then, Bogdanor says, “[a]t the beginning of the twentieth century, it still had no regular time of assembly, nor fixed place of meeting, the date of meeting being fixed, usually at short notice, by the prime minister. There were no rules of order, no quorum, no agenda and no record for minutes of what was decided; and it was considered contrary to etiquette to take notes at a Cabinet meeting” (p.9).
So why keep such a system with such problems? Well, for one thing, it has been felt that just such a system’s strength is in its flexibility and relative responsiveness to emerging situations, within certain constraints.
I cannot discuss all eighteen chapters here, although I will discuss several that may be of particular interest to the American readers of the LAW & POLITICS BOOK REVIEW.
Geoffrey Marshall discusses “The Constitution: Its Theory and Interpretation” in the second chapter (pp.29-68). Marshall asks, “In which sense then does the United Kingdom have a constitution?” (p.31). He comes up with four views of what a constitution “is”:
(a) the combination of legal and non-legal (or conventional) rules that [*532] currently provide the framework of government and regulate the behaviour of the major political actors;
(b) a single instrument promulgated at a particular point in time and adopted by some generally agreed authorisation procedure under the title “constitution” (or equivalent rubric such as “basic law”);
(c) the totality of legal rules, whether contained in statutes, secondary legislation, domestic judicial decisions or binding international instruments or judicial decisions, that affect the working of government;
(d) a list of statutes or instruments that have an entrenched status and can be amended or repealed only by a special procedure (p.31).
When looked at against these criteria, the British constitution is not that odd and mysterious after all. It clearly satisfies conditions (a) and (c), although not conditions (b) and (d)—although Britain did have a constitution in sense (b) under Oliver Cromwell. The “unwritten” constitution is really a reference to the fact that Britain’s constitution is not a particular document with “historical significance” (p.31). In other words, it is perhaps not as peculiar as it might seem at first.
All that said, there is one particular worry for legal theorists as a result of an unwritten constitution and that is the fact that “[t]he idea of a codified constitution, or even fundamental laws, by which executive or legislative decisions might be judged, was alien to both the royal prerogative and parliamentary sovereignty” (p.340). That is, many British judges have struggled with the question of whether it can be possible to declare a parliamentary statute “unconstitutional” given the royal prerogative and parliamentary sovereignty (p.341). For example, as Lord Halsbury says in WEBB v. OUTRIM (1907), “That is a novelty to me. I thought an Act of Parliament was an Act of Parliament and you cannot go beyond it . . . I do not know what an unconstitutional act means.” This fascinating concern is addressed by Robert Stevens in his chapter “Government and the Judiciary” (pp.333-72).
What has changed over the twentieth century (amongst many other things) is that the judiciary has attained a role of greater prominence in the British constitution. For instance, today the Law Lords can declare Acts of Parliament unconstitutional. (In addition, the European Court of Human Rights can do likewise and strike down Acts of Parliaments in a further interesting twist.) An additional way in which the judiciary has become more important is in their being used—with growing frequency—to chair commissions and committees, as they have become “increasingly seen as ‘impartial’ and capable of ‘objective’ solutions” (p.345).
Indeed, most recently readers may remember Lord Hutton’s enquiry into the circumstances surrounding the death of Dr. David Kelly. Dr. Kelly had been identified by the BBC’s reporter Andrew Gilligan as the source for the claim that a major intelligence analyst had told him that the Prime Minister (with particular help from his director of communications and former tabloid editor, Alastair Campbell) had “sexed up” the government’s dossier detailing Iraq’s weapons capabilities and alleged weapons of mass destruction (now known in Britain as “the dodgy dossier,” [*533] as it had plagiarised a PhD thesis written in the early 1990s found online). Dr. Kelly worked at the Ministry of Defence and was Britian’s top Iraq weapons inspector. Of course, this inquiry was thought to do some damage to the judiciary’s credibility as it was thought Lord Hutton—himself a former “Diplock Court” judge (a judge who sat juryless criminal trials of suspected IRA members during the Troubles)—too favourably disposed towards governments generally, and his report was often thought a whitewash job, as it laid no blame with the government surrounding the circumstances of Dr. Kelly’s death (which went across the grain of widespread public opinion from both left and right). That said, I would doubt the judiciary was affected too much from this enquiry (Lord Butler’s investigation shortly thereafter into the intelligence used to justify the war in Iraq was more critical of government) given the already divisive nature of the context, the deeply unpopular Iraq war. I only mention this case as the most recent and best well known use of judges as “impartial” and “objective” authorities to address questions of trust and public accountability. It is a welcome change for the better. While many may well disagree with the conclusions of various Law Lords, few would want politicians to administer these commissions and committees, as well as judicial enquiries, instead.
Much of the chapter—like most of the chapters in the volume—provides a masterful point-by-point analysis of the various changes over the twentieth century. One interesting development was the move away from formalism in the 1970s. Legal formalism had been the school of thought within which British judges had worked. However, its end is captured well in the following passage by Lord Reid in 1972. He says:
There as a time when it was thought almost indecent to suggest that judges make law—they only declare it. Those with a taste for fairy tales seem to have thought that in some Aladdin’s cave, there is hidden the Common Law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when a judge muddles the pass word and the wrong door opens. But we do not believe in fairy tales anymore (p.354, also see Lord Browne-Wilkinson’s quote on pp.364-65).
This new judicial view of their own role led to a number of changes, including the restoration of procedural due process, and moved towards adding a doctrine of substantive due process. Of course, it is difficult to tell how much judges were influenced by important legal philosophers, such as Ronald Dworkin, who have forged new ground in pointing towards just such a position.
One particular peculiarity of the British constitution is the position of Lord Chancellor. The position is unique in that the Lord Chancellor plays major roles in all three branches of government: he (it has thus far always been a man) sits in the House of Lords (the legislature), sits in the Cabinet (the executive), and often sits as a judge in both the Lords and Privy Council (the judiciary). Of course, what is problematic is the fact that the position of Lord Chancellor seems to violate the principle of the separation of powers. While Stevens does note that the British constitution seems to be working well, I think he underplays potential problems [*534] with the Lord Chancellor, especially in matters before the European Court. Stevens observes that the New Labour government, under Tony Blair, has been active in seeking to reform the position, but the government has not done too much as of yet. (That said, it is true that there were plans to scrap the position and replace with something else, more respectful of the separation of powers, but this more radical reform—which was met with much public derision—is on hold for the foreseeable future.)
Another chapter worth mentioning is David Feldman’s fine piece on civil liberties (pp.401-81). At eighty pages, it is a real tour de force and covers quite a broad sweep of ground effectively. Feldman discusses women’s rights, adult suffrage, Crown privilege, free speech, pornography, prostitution, terrorism, and a range of other issues. Of course, the twentieth century saw a number of significant developments in civil liberties. For example, the Royal Commission on Capital Punishment, set up in 1949, staged the way for the abolition of the death penalty with its report in 1953, although the death penalty is only abolished for crimes like murder in “normal times”—i.e., when Britain is not at war. Another significant change was the British Nationality Act of 1948 which created British Commonwealth citizenship for members of the Commonwealth. Instead of bringing a clearer coherence to what it meant to be “British,” as it were, the act “led to fears of uncontrolled immigration” (p.429). In some sense, this sense of “British-ness,” if we can so call it, has become a matter of increasing concern to many citizens of the United Kingdom with the onset of devolution, creating regional assemblies in Wales and Scotland. Northern Ireland has had its own assembly for a while now, although its activities are currently suspended. Now only England has all its decisions made in Parliament, leading to calls for a future regional assembly in the North of England (which failed a referendum with voters).
Perhaps a move backwards for civil liberties was what Feldman describes as “the assault on the right of silence in England and Wales” (p.463). Here he has in mind the Human Rights Act of 1998, which allows judges and juries to draw adverse inferences from a defendant who exercises the right of silence and refuses to take the stand. This idea has its precedent in British law, in particular, in Northern Ireland where this was instated in 1988. Indeed, this aspect of the Human Rights Act is particularly regrettable, and one can only hope that there will be a change in the law soon. No doubt future governments will be slow to make any change, as they may think that it will enable higher conviction rates. Only the future can tell.
However, the 1998 Human Rights Act brought about another change that is largely positive; it incorporated the European Convention on Human Rights (ECHR) into British law. Thus, the European Court of Human Rights can decide British cases, and the UK is obliged to follow its decisions. This has had a most profound impact on recent legislation enacted to help Britain avert terrorism attempts in the wake of the 11th of September, 2001 atrocity in the United States: namely, the European Court ruled one by one that virtually every aspect of the government’s anti-terrorism legislation violated the human [*535] rights of British (and European) citizens as laid out in the ECHR.
A further concern is that the European Court ruled in a Dutch case that criminals have a right to be given a reason for their conviction—beyond a statement “well, you’ve been found guilty,” and the like. Much of Europe does not employ jury trials and so this decision has not been seen as particularly problematic for those countries, such as France, Germany, and Italy. However, many countries, including Sweden, Belgium, Ireland, and not least the UK (where the modern jury trial began), have become somewhat nervous about the implications of this decision on their legal systems. At the moment, there have not been any calls to end jury trials; however, some scholars are beginning to lobby for major reforms in the jury system (and, in particular, arguing that they should give “special verdicts” laying out their case for why a defendant was guilty) and, indeed, for abolition of juries altogether. For the moment, the right to trial by jury looks very safe, as it rightly should be.
Finally, a few words are warranted for what might be the most peculiar institution in the British constitution from American eyes: the British monarchy. Rodney Brazier writes a very engaging chapter on the topic, detailing the monarchy since 1900 (pp.69-95). The current monarch, Queen Elizabeth II, is often held up as a model constitutional monarch. However, in Brazier’s not unreasonable view, he doubts whether this is the consequence of her effective leadership (and restraint) or of constitutional amendments. It is true that the queen performs many important functions. For example, Brazier notes:
She is a symbol of the nation, a focus for national loyalty transcending political partisan rivalries. As with her predecessors, the queen personifies the state and the nation, their history, stability, and continuity. The sovereign recognises success and achievements, especially through the honours system [knighthoods, and the like], and encourages citizens to do good by each other (pp.70-71).
However, the monarch is more than this. He or she was more powerful in the early twentieth century than at its end. For example, George VI met weekly with Winston Churchill for lunch on Tuesdays by 1940, and they formed a close pair. These meetings continued even after the war (p.79). Not all advice shared by the king with his prime minister was poor. For example, George VI advised Churchill to not “set to sea with the Allied forces on D-Day,” a warning Churchill followed (p.80).
The monarch does continue to enjoy a number of powers, called “the royal prerogative.” Often these powers take effect upon advice from government ministers. For example, when Queen Elizabeth gives her annual Queen’s Speech detailing the future plans for her government, it would be hard to imagine her scripting the document herself, dictating what the government will do (instead of the speech being drafted by the government itself, as it now customarily does). However, there are a number of powers the monarch retains, including the ability to insist on (or refuse) the dissolution of Parliament and to call for elections, the ability to refuse royal assent of Acts of Parliaments, and [*536] the ability to dismiss ministers (p.81). While it is difficult to imagine any modern monarch taking up these powers against the wishes of government ministers, it is equally difficult to imagine a future (or the present) government enacting legislation to limit or abolish the royal prerogative. There is simply no will to do so amongst government, its opposition parties, or the public.
One final thought (and criticism) should be noted. I found a particular aspect of this volume particularly annoying: the poor copy-editing. Sometimes poor copy-editing results in misspelled words or incongruous notes and/or bibliographical entries, but that was not the worry here. In this volume, the copy-editor does a very poor job indeed at picking up grammatical errors. In nearly every chapter, different quotation marks are used, sometimes before or sometimes after different forms of punctuation. Usually, the grammar is correct, but often a single page will have two different grammatical forms running simultaneously. In fact, the first example occurs on page 1, and, as I say, the problem recurs throughout. What is most disappointing about that is simply that, of all the weaknesses of any piece of work, the one problem that is most unnecessary and easiest to avoid—not least for a publisher of the calibre of Oxford University Press—is poor grammar. Such a problem distracts from the merits of the arguments and the otherwise erudite essays by these distinguished voices. Bogdanor gives us no hint as to the copy-editor’s identity, but he or she has done a truly terrible disservice to an otherwise brilliant collection.
Bogdanor’s THE BRITISH CONSTITUTION IN THE TWENTIETH CENTURY is a true achievement and will, perhaps, become the final word on the subject—at least for the foreseeable future. In addition, it has the remarkable feature of being quite useful not only to all students (whether undergraduates or postgraduates) but to the academic community itself. I have gained much from its pages and have little doubt fellow colleagues will benefit likewise.
WEBB v. OUTRIM,  AC 81 (Aus. 1906).
© Copyright 2005 by the author, Thom Brooks.