From The Law and Politics Book Review

Vol. 9 No. 2 (February 1999) pp. 88-89.

 

CONSTITUTIONAL REFORM: RESHAPING THE BRITISH POLITICAL SYSTEM by Rodney Brazier. Oxford: Oxford University Press, 1998 (2nd ed.). 197pp. Cloth $67.00. ISBN 0-19-876524-X.

 

Reviewed by Elizabeth Mayer. Email: visiontheatre@saltspring.com.

 

It is a brave person who in 1998 decides to publish a book on constitutional reform in the United Kingdom. Almost every week there is a fresh development from the Labour government on reform of the House of Lords, the establishment of the Scottish and Welsh assemblies, changing the voting system, continuing reform in Northern Ireland or introducing the Human Rights Bill. This constantly changing background makes it difficult for an author to spell out his or her own plans for reform or to speak authoritatively on plans put forward by others. Writers are trapped into being either hopelessly vague as they try to cover every angle or finding that their work is out of date almost as soon as it is published.

The aims of Brazier in the second edition of his book appear at first sight to fall into this trap. In his preface, he sets out his purpose as examining "the shortcomings of the British constitution" and proposing "an agenda for reform." However, he manages to side-step many of the difficulties by concentrating as much on "the methodology of reform", as on the specific nuts and bolts of the changes that might emerge. Brazier‚s main thesis in this book is that only by getting the process of reform right, will British governments come up with proposals which have a prospect of wide-spread acceptance. The process he recommends is a Constitutional Commission; a permanent body combining a mixture of politicians, lawyers and other public figures, which would have two roles.

As this is Brazier‚s main thesis, it is worth setting out how he sees the Constitutional Commission working. First, the Commission would have a "declaratory role" of reporting on areas where the constitution is unclear. As Britain has no written constitution, there are gray areas where there is doubt as to the correct constitutional action. For example, what would happen if there were a hung parliament following a general election? The Commission would consider matters such as this and make suggestions as to the correct constitutional position. While the suggestions would have no legal force, they would have authoritative value. Brazier, for example, says that the Queen could hardly be faulted for following the Commission‚s position in the event of a hung parliament. The second element of the Commission‚s work would be its "reforming role". The Commission would consider specific questions referred to it by ministers. While Brazier does not expect that the Commission would immediately be trusted by politicians to deal with all major constitutional issues, he considers that over time it would gain respect and therefore become more and more useful.

Starting with this proposal, Brazier goes on to consider a wide range of issues which are current on the constitutional scene in Britain in the late 1990s. These, in brief, are changing the voting system for elections to the House of Commons, reforming the House of Lords, restraining ministerial powers, considering the position of the monarchy, introducing a Bill of Rights and reforming the position of the judges. In some cases he suggests specific reforms, such as favoring a power of recall over MPs who have misused their powers. In others, he suggests that the matter is ideal for his proposed Constitutional Commission, such as the question as to which form of voting system, if any, might replace the current first-past-the-post system.

 

In each case, Brazier tends to raise more questions than he answers. He does not believe in easy solutions to the difficult questions of constitutional reform in Britain. This is a strength of the book. It is an excellent source of ideas for alternative solutions to long-standing constitutional problems. For example, on reform of the House of Lords, Brazier does not plump immediately for abolition of hereditary peers. Instead, he calls for gradual reform, starting with a reduction of the powers of the Lords, introducing a wider number and range of life peers and imposing an attendance requirement to reduce the power of the őbackswoodsmen‚.

However, this gradual approach also highlights one of the weaknesses in the book. Brazier tends generally to accept the value of the status quo, considering change only where he considers it to be absolutely necessary. He does not take a critical approach to constitutional reform, preferring to accept many of the constitutional norms that exist. For example, when discussing the introduction of human rights legislation, Brazier concentrates on the issue of entrenchment; how far can a Bill of Rights be superior to all other legislation. He does not consider the wider questions as to whether legal rights are an effective method of protecting the individual. Further, he assumes that rights such as a right to private property should be included in human rights legislation, ignoring the wider debate over the value of a right to private property.

A second weakness in the book is the limited reference to the experience of other countries. Brazier explores in detail the Australian experience of constitutional reform when he is considering his proposed Constitutional Commission. He discusses the use both of a Constitutional Convention and a Constitutional Commission in the 1980s and praises the results (although he is perplexed that they were rejected by the public at a referendum). However, this is the only overseas example to which Brazier refers. To some extent this is to be expected. Given that Britain does not have a written constitution, the experiences of those countries with such a constitution can never provide a blueprint for reform. However, there are plenty of countries that have undertaken a constitutional reform process that could be instructive for Britain. One is left with the uncomfortable feeling that the Australian example is considered only because it supports the establishing of a Constitutional Commission in the United Kingdom and that other examples are ignored because they may not lead to the same conclusion.

However, on balance, this book is a useful study on the process of constitutional reform in Britain. While one may not agree with the conclusions, the mere process of reading the arguments for and against particular solutions and the discussion on the methodology of reform are beneficial. It will principally be of use to students of the British constitution, with some interest to those engaged in comparative studies.

 


Copyright 1995


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