Reviewed by Andrew McDonald, University College, London. Email: andrew.mcdonald [at] cabinet-office.x.gsi.gov.uk.
How best to start an overview of the British constitution? That must have been one of the bigger questions facing Peter Leyland when he contemplated writing this primer on the UK’s constitutional arrangements. How should one frame a study of a constitution which is uncodified and is popularly, if mistakenly, understood not simply to be unwritten but not to exist at all? Leyland’s sensible answer to these questions is to guide the reader – at a brisk pace – through Britain’s constitutional history, the sources of its constitution and its governing principles. He then settles down to work through some of the country’s defining institutional and legal characteristics. The reader is left in no doubt that Britain has a constitution – and a constitution which has much in common with its codified counterparts. But the same reader might be left uncertain as to where that constitution stops. What are the boundaries of a constitution which does not arise from one core text? Others have, of course, wrestled with this question before. The Westminster Parliament itself has a bespoke process for handling legislation of ‘first class’ constitutional significance. All well and good, but it is a matter for debate as to which bills qualify for this treatment. Leyland’s own answer to the question is equally debatable: the starting point of his study may be uncontentious, but its coverage will not command universal assent, a point to which I will return.
THE CONSTITUTION OF THE UNITED KINGDOM is the first in a series of overviews of constitutional systems: others on the stocks include Mark Tushnet on the USA and Cheryl Saunders on Australia. We are promised contextual analyses, situating constitutions in their national history and explaining their underlying principles. The idea is at once admirable and innovative: it is difficult to think of any other recent series with the same ambition. Particularly stretching – and questionable – is the intention to meet the needs of ‘scholars and students’ (my emphasis). This is a tall order for any enterprise.
Leyland, one of the series editors, is first off the blocks in meeting the challenge. If there was any doubt as to whose needs would come first, it is soon clear that he is focused particularly on the needs of the student. He sets out to provide an accessible, concise survey of Britain’s constitutional history and of its present constitutional arrangements. The book is not intended, it seems, to be read from cover to cover: key principles are repeated, it seems, so that those dipping into the text should not be deprived of them. Signposting is clear and helpful. Bibliographies are to the point. The reader is never patronised but it is [*988] assumed that he or she has no prior knowledge of the country or of its constitution. One might imagine that Leyland had an American college student market in mind when he was writing.
If that is the task he has set himself, how well does he do? For the most part, the report card must be positive. The prose is clear and authoritative. The reader’s tour of Britain’s constitutional history is efficient. The parliamentary process, including the passage of bills through Westminster, is described accessibly and with concision. The classic texts of constitutional analysis – Dicey, Bagehot, Jennings and the like – are introduced and their contribution summarised. And the radical reforms of the Blair administrations are recounted effectively. There is much that is good here.
Leyland is a reliable guide: he makes few slips. More questionable, though, is his selection of topics. He is evidently happier describing developments in public law, and his analysis here is self-confident and assured (see, for example, his account of the Human Rights Act). Indeed, some might consider his accounts of recent public law cases a little too full for a survey of this sort. He is less at home in describing institutional arrangements or in his discussions of policy debates. For example, his account of the centre of government focuses on the hinge between Number 10 and the Cabinet Office. The relationship between the Cabinet Office and HM Treasury – a defining feature of British government since 1916 – is neglected. He also launches into excursions which, at best, explore the margins of the constitution – and quite often he chooses to go off piste altogether. Hence we learn about his views on the dominance of the Oxbridge elite, on e-voting, on the digital divide and on the Public Accounts Committee’s report on the Passport Agency. The uninitiated but discriminatory reader may wonder whether even the British constitution – amorphous and elusive as it is – is sufficiently capacious to take in all of these topics. But more problematic is the unevenness in Leyland’s tone: he interlaces his account with opinions – each of them plausible, but many contentious – which might be absorbed by the unsuspecting as though they were received wisdom. His treatment of the Blair reforms is illustrative here. Many of the statutes are summarised in straightforward, prosaic style: for example the Constitutional Reform Act 2005 and the Government of Scotland Act 1998 are recited efficiently and without commentary. Not very exciting for some, but helpful for the newcomer. But the same newcomer will have to be alert to spot the change in tone when Leyland goes on to opine that devolution to the English regions (rejected at a referendum in the North East) must be addressed, that the Westminster Parliament will develop a procedure whereby English MPs alone will decide on ‘English’ issues, that the financial controls on local government must be loosened, that the parliamentary system is akin to ‘elective dictatorship’ and that the Blair Governments passed ‘repressive legislation’ in the wake of the Human Rights Act. Each of these may – or may not – be an arguable proposition, but Leyland does not help those less familiar with the British system to spot when he is mounting one of his personal hobby horses. Confusion [*989] in undergraduate essays is bound to follow.
There is also some room for debate over those topics which Leyland has chosen to omit or downplay. He addresses himself to the constitution of the UK, and yet he has little to say about arrangements in Northern Ireland, which has (by force of circumstance) been a remarkable source of constitutional innovation in the last decade. If the Northern Irish story is seen by some as sui generis, the same cannot be said for Europe’s impact on the British constitution. The UK’s accession to the (then) European Community in 1973 is probably the most significant constitutional development in the second half of the twentieth century. And yet Leyland’s treatment of it is surprisingly brief: for the most part he focuses on the constitutional architecture which the British have chosen to construct for themselves. He does not dwell long on the European Union’s influence on those arrangements.
These questions notwithstanding, this remains a valuable introductory survey. It is perhaps less challenging for the newcomer than recent works by Jowell, Oliver and Hazell but those more familiar with the UK, its law and institutions will find him less rewarding and exacting than these other authors. Nobody has yet to find an entirely satisfactory way of defining the scope of the British constitution and even codification would not resolve the problem definitively: consider the penumbra of texts and cases which are associated with the understanding of codified constitutions. But the task is particularly difficult at present. No sooner has the job been attempted but the constitution has been reformed. The pace of change under the Blair/Brown administrations has been intense, and it shows no sign of slacking. Leyland’s work was completed in 2006 and published last year. And so it is silent on the new wave of reforms announced by Gordon Brown when he became prime minister, and it cannot comment on the election in 2007 of a nationalist administration in Scotland. Already, there is a case for a second edition, marking out the boundaries of the constitution once more.
Jowell, Jeffrey, and Dawn Oliver (eds). 2007. THE CHANGING CONSTITUTION. Oxford: Oxford University Press.
Hazell, Robert. 2005. DEVOLUTION, LAW MAKING AND THE CONSTITUTION. Exeter: Imprint Academic.
© Copyright 2008 by the author, Andrew McDonald.
The Constitution of the United Kingdom: A Contextual Analysis (Constitutional Systems of the World)