by Vernon Bogdanor. Oxford, UK, and Portland, OR: Hart Publishing, 2009. 334pp. Hardback. $90.00£45.00. ISBN: 9781841131498. Paper $35.00/£17.95. ISBN: 9781841136714.
Reviewed by Richard A. Cosgrove, Department of History, University of Arizona. Email: rcosgrov [at] u.arizona.edu.
In this interesting volume Vernon Bogdanor, Oxford political scientist and author of numerous valuable books on modern British constitutional theory and practice, offers the argument that British entry into Europe in 1973, in conjunction with a number of varied constitutional changes since 1997, has created a new British constitution. This thesis is well developed, although at various points in the analysis the author concedes that his evidence is subject to contrary interpretation. Nevertheless this work provides a thorough dissection of contemporary political and constitutional issues that merit careful consideration.
What was the old constitution? In the author’s view this constitution rested upon two classic statements: Walter Bagehot, THE ENGLISH CONSTITUTION (1867) and Albert Venn Dicey, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION (1885). Bagehot had emphasized that the fundamental elements of the constitution included the union of executive and legislative authority, not their separation, and the subordination of judicial power to parliament. Dicey furnished the evidence that the central constitutional principle since 1688 was the sovereignty of parliament. I have no doubt that if Dicey lived today he would admit that his constitution no longer existed. Strasbourg, devolution, and an altered House of Lords would have caused Dicey endless dismay. Anyone familiar with Dicey might well imagine the furious jeremiads from north Oxford at the demise of the old constitution. In this respect, therefore, Bogdanor stresses rightly that political turmoil has spurred constitutional change in the past (1688, 1832, 1911), but the advent of this new constitution has not occasioned political drama on the same scale.
In the first pages the author lists conveniently the changes since 1997 that define the new constitution. Most of these changes have attracted little public discussion except perhaps in the changes to the House of Lords. Bogdanor explains the new order as changes in public law only; private law has no role in the constitutional revolution. This point is not a criticism, but it is to prepare the reader that technical issues of private law are nowhere to be found.
Another issue to ponder is the conventional description of the constitution as historical, one that has evolved over the past eight centuries. What criteria are necessary for the creation of a new constitution, or should changes more readily be explained as part of a larger historical pattern? As Bogdanor concedes, in another half century what seems revolutionary now may well seem not nearly so dramatic. [*764] In 1655, for example, a truly revolutionary constitution had appeared, but by 1665 the traditional one had reasserted itself triumphantly. Constitutional analyses in Britain frequently focus on debut and attenuation, so the question of what temporal guidelines are appropriate always requires consideration. In this sense, therefore, the issue of defining what is old and new becomes paramount.
Bogdanor devotes an entire chapter to the issue of devolution, arguing correctly that, by the Diceyan standard, parliamentary sovereignty has vanished. Dicey believed that sovereignty was like pregnancy; either you were or were not, and there was no middle ground. Devolved bodies now handle the internal governance, but England has no similar institution. The grant of devolved authority, it is usually argued, must necessarily destroy parliamentary sovereignty. Yet, in the past Britain has combined the two without philosophical or juristic debate. The Stormont government in Northern Ireland from 1921 to 1972 enjoyed special devolved powers without creating much of a stir. The point here is that devolution has perhaps not created such a revolutionary change as many had anticipated. Voter turnout in Scotland and Wales seems to indicate that the electorate has accepted the change without an outpouring of fervor.
The transition of the House of Lords from an hereditary to a predominantly elected body attracted the most public attention but was not the result of public demands. The abandonment of a strict hereditary principle after centuries no doubt makes a substantial change in constitutional arrangements. Some transformation of the Lords has loomed since 1832, and the Parliament Act of 1911 began the process of restricting the Lords’ power, a process continued after World War II. In addition, as Bogdanor himself suggests, the 1999 legislation that was intended as a first step to reform the upper house thoroughly has apparently lost momentum and a decade later has dropped from public consciousness. So, once again, does this process contribute to the formation of a new constitution or does it represent an evolution that reaches back into the British past?
Old versus new also bears upon the author’s reflections on the referendum. The first and only fully national referendum in the United Kingdom happened as long ago as 1975 when the British voted on whether to ratify entrance into the European Community. While not a government-sponsored initiative, the Peace Ballot of 1934 did solicit a national vote on a single issue. A single referendum, or perhaps two, has hardly won a place for this electoral device in ordinary political or constitutional calculation. Five referendums since 1997 have affected the devolved areas of Scotland, Wales, Northern Ireland, London, and the English northeast. Voter participation has generally been underwhelming; success in taking the pulse of the various constituencies, therefore, has proven tepid.
Most commentators in the past have assumed the referendum will check radical legislation (this was Dicey’s view), but the fact remains that no one can ever anticipate the outcome. Most often each side to an issue fears the referendum [*765] because they believe that the vote will go against them. The checkered history of ballot initiatives in the United States does not generate optimism that the vox populi represents the apex of political wisdom. Five regional referendums have occurred since the advent of the Blair government in 1997. Four have approved the ballot issue, while only one has resulted in a negative decision (the proposed assembly for northeastern England). Other referendums have appeared imminent, such as a vote on the euro, but now no additional appeals to the electorate seem pending. If the Conservative party replaces Labour in the near future, it is doubtful whether the Conservatives will employ this electoral strategy. Does the referendum now play such a significant role in British politics that it helps define a new constitution? Each reader of this volume will decide for her/himself; Bogdanor presents the relevant evidence in an impartial fashion on the referendum’s complex issues.
The author then turns to the vexed question of whether, in view of the recent constitutional changes, it is time for the United Kingdom to adopt a written constitution. Bogdanor envisions such a document more as a statement of principles rather than a detailed enumeration of rights and obligations. That some elements of the unwritten constitution survive from the reign of Henry II in the twelfth century and occasionally from precedents from the Anglo-Saxon era present special challenges to such an enterprise. In the nineteenth century, efforts to enlist support for the codification of the common law failed miserably. Whatever the theoretical arguments in favor of this project, the practical aspects are formidable.
Who would have the responsibility for drafting such a document? Who would ratify it? And who would possess the authority to change this grundnorm? These questions admit of many practical (and some impractical) solutions, and the author notes the many areas where legitimate disagreement might exist. His conclusion is that a written constitution does not seem likely anytime soon, but if it occurred this surely would reinforce the new constitution thesis. Without it, the new constitution argument is greatly weakened.
The centerpiece of the new constitution is the Human Rights Act of 1998. The author argues for the centrality of this statute because it permits appeals beyond the British courts to Strasbourg, and this process undermines parliamentary sovereignty. Further, Bogdanor anticipates the Act will increase the work of the judiciary because judges will have to review legislation [*766] in order to decide whether a particular act comports with the rights provided in the 1998 Act. The implications of the Human Rights Act are spelled out with rigor and clarity. It is this issue that supports best the enunciation of a new constitution.
Once again, however, the reader may well reflect that prior to the nineteenth century the common law had developed primarily through judicial legislation. Only in the era of Benthamite reform did judicial deference to statute become ascendant. A return to a renewed form of judicial review without fear of parliamentary authority raises anew the question of evolution versus revolution in the contemplation of a new British constitution. The longer the historical perspective taken, the less convincing becomes the new constitution argument.
In the end, therefore, the reader will face the problem of semantics. The book presents an extended, sophisticated meditation on contemporary constitutional issues. Each one is explained fully and fairly. Does the evidence, no matter how extended the account, justify the appellation of a new constitution? Even the author seems ambivalent, calling the new creation a work in progress. Fifty or one hundred years from now, how will this argument look? Will Bogdanor’s documentation fit into the seamless pattern of constitutional evolution, or will our era truly appear to have contained such meaningful change as to justify the term new constitution? At this point I doubt whether a final judgment is possible. What I have concluded, however, is that the book will interest scholars in the field of British constitutional history: past, present, and future.
© Copyright 2009 by the author, Richard A. Cosgrove.