The British constitution, long considered entrenched by tradition and history, has, since , undergone a process unique in the democratic world: piecemeal. ‘The creation of a new British constitution and the demise of the old. The HRA is the ‘cornerstone’, says Bogdanor, of a new constitution (53). The New British Constitution by Vernon Bogdanor. Denis Baranger. Université Panthéon‐Assas, Paris II. Search for more papers by this author.
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We have, sincebeen undergoing a process unique in the democratic world of transforming an uncodified constitution into bogsanor codified one, piecemeal, there being neither the political will nor the consensus to do more.
The main elements of the new constitution are the Human Rights Act and devolution to the non-English parts of the United Kingdom. The Human Rights Act and the devolution legislation, moreover, have the character of fundamental law. In practice if not in form, they limit the legal powers of Westminster, a formerly sovereign parliament, and establish a constitution which is quasi-federal in nature. However, they do little to secure more popular involvement in politics. Bogsanor next phase of constitutional reform, therefore, is likely to involve the creation of new forms of democratic engagement, so that our constitutional forms come to be more congruent with the social and political forces of the age.
The end-point of this piecemeal process might well be a fully codified or written constitution which declares that power stems not from condtitution Queen-in Parliament, nw, instead, as so many constitutions do, from ‘We, the People’. He has been an adviser to a number of governments, including those of the Czech Republic, Hungary, Kosovo, Israel and Slovakia. All of Professor Bogdanor’s past Gresham lectures can be accessed here.
Current Visiting Professor of Political History.
The New British Constitution: Vernon Bogdanor: Hart Publishing
I think the best thing ever said about the British Constitution was said by the Queen. As a visitor to Queen Mary College, she asked to look around, and she heard the seminar was going on about the British Constitution and she asked if she could sit at the back.
She listened carefully to the discussion and, at the end of it, she said, ‘The British Constitution has always been puzzling and always will be. She attended another event, a few years before that, at University College London, where I think she was also the visitor.
She was going round the various stands, and she came across the stand of the lawyers. I haven’t noticed any changes! I think you could not now say there have not been many changes, because we have seen, sincea huge number of them, which I suggest in my new book amount to a new British Constitution, as the title suggests.
There are really two themes of the book. Constitutiom first is that these changes that we have had since give us, in effect, a new British Constitution, though most of us have not noticed it; but second, that these changes are insufficient, and that we now need to open up the Constitution much more than it has been opened up in the past.
It is still a closed system.
I think it is purely fortuitous, but perhaps I ought to thank people like Nicholas Winterton and Sir Peter Viggers for bringing out the expenses scandal, because I think this emphasises one of the messages of the book; that we have too closed a system, that Westminster is too cut off from the public, and that we need reforms to open it up much more. So there are these two themes: Untilit could reasonably be said that our Constitution, by which I mean our system of government, was what has been called a historic Constitution.
What I mean by that is not merely that it is very old, though it certainly is that, but that it was unplanned; the product of evolution rather than, as it were, human thinking. It just evolved, in a way that so many British institutions have been evolved, and it was very difficult to actually discover what it was. If you were to join a tennis club and asked if you could have a look at the rules of the club, and someone replied to you, ‘Well actually, they haven’t all been gathered together in any one place; they’re the product of a long period of history, and some of them are not written down at all – they’re unspoken conventions – and you’ll pick them up as you go along, and I have to warn you that if you have to ask about the rules, it shows you don’t really belong at all to the club!
But you may argue that was what the British Constitution was until The rules were not wholly clear, and in this point, we differ from almost every other democracy. There are only two other democracies without constitutions brought together in one place, and they are those of New Zealand and of Israel. The British Constitution then, and I think the expenses row brings that out, it was never clear what the rules are. It is based on unspoken conventions, and you may say even nods and winks as well – they are not clear.
Someone once said, and this was over years ago now, ‘The British system of government is based on tacit understandings,’ but then he said, ‘but the understandings, unfortunately, are not always understood. So this is one reason why we never had all this brought together, because there is a sense in which England never really began as a society.
Most countries have constitutions when they have a constitutional moment, a revolutionary break with the past, as with the United States when it broke from Britain, or Germany after the War when they had to start again, or France in when De Gaulle came to power after a coup d’etat and determined to create a new system.
The New British Constitution
In such instances countries draw up a constitution; they have to start again. The ex-Communist countries in Eastern Europe are another good example. But in a sense, we never began in that way.
But secondly, it is very difficult to have a constitution if, as britisj our system, Parliament was sovereign. What it means to say that Parliament is sovereign is that Parliament can do what it likes. So Parliament can do anything. Now, if Parliament can do anything, there is no point having a constitution, because then the constitution could be summarised in just eight words: It does not, in reality, exist.
The Parliament is at once a legislative and constituent assembly. But sinceconstituiton this period of twelve years, we have had a huge number of constitution reforms, and I have tried to work them out. I list them in britush book, and I listed You will be pleased to hear that I am not going to go through the 15 now, and I think a lot of them are probably very familiar to you anyway.
But some examples of the main ones would perhaps be of benefit. Devolution is one major reform, so that the non-English parts of the United Kingdom now have thf own Parliaments or Assemblies. The Human Rights Act is another very major reform, and you probably read in the newspapers a couple of days ago that the judges said the control orders, which are designed to restrict the freedom of suspected terrorists, go against the Human Rights Act.
So Constituttion do not think anyone would deny the Human Rights Act, for better or worse, had a major effect on British life and on British Government. Then, the Freedom of Information Act. I think that without the Freedom of Information Act, we would never have known about the expenses scandal, so that too is a very major reform. Then there is the reform in the position of the Lord Briitish. He has lost some of his role.
He is no longer the Speaker of the Upper House, he is no longer the Head of the Judiciary, and for the first time, the Lord Chancellor is not even a peer. The senior judges are moving out of the House of Lords into the Guild Hall. They are much more insulated from politics than they were in the past.
So these are all very major reforms, and I think they ned us a totally new system, but we have not noticed it because things move in an evolutionary way, and because we do not have a Constitution, we do not actually bring our minds to bear as much as we might otherwise on constitutional change. But I think that someone falling asleep in and waking up today would find a totally changed landscape. It is rather like the famous story of Rip Van Winkle, who went to sleep for twenty years in America, and when he went to sleep, he saw a pub nearby called The George, and on it, there was a portrait of George III, but when he woke up, it was also called The George, but the portrait there was of George Washington!
So a lot had changed while he was asleep, and I think if we had been asleep, we would have found things exactly the same. All these changes, for better or worse, have one very important effect, which I think has not been underlined as much as it should have been, and that is that they limit the power of Government.
Now, the Human Rights Act, very obviously, limits the power of Government. Some people say it does this in a bad way, because they say it means Government cannot deal effectively with the threat of terrorism or the problem of asylum seekers. But whether you think it is a good thing or a bad thing, it does limit the power of Government. Devolution limits the power of Government, because in Scotland, Wales and Northern Ireland, what you might call domestic political affairs – matters like health and housing and education ‘ are now out of the hands of Westminster.
Then, we have seen a major reform of the House of Lords, which, whether intended or not, that has also had the effect of limiting the power of Government. Before this reform, inthe Lords was composed of two-thirds hereditary peers, who tended mostly to be Conservative, so the Conservatives always had a majority, whichever party was in power in the House of Commons.
This meant, in practice, that the Lords did not britisn its powers very much, because they realised they did not in fact have much legitimacy. But now, with all but 92 of the hereditary powers removed, no single party has an overall majority in the House of Lords.
In fact, the largest party in the Lords, for the first time in its history, is now the Labour Party, and the second largest group is a group of cross-bench peers who do not belong to any party, and the Conservatives are now the third largest group. But no one party has an overall majority, and it seems to be accepted that no single party should ever again have an overall majority in the Lords.
This has an important consequence, because of course Governments normally have an overall majority in the Commons – they can normally rely on getting their legislation through the Commons – but they cannot rely on getting their legislation through the Lords. They actually have to win the argument, if you like. Constittution have to win over the support, usually, of the cross-bench peers or the Liberal Democrat peers, who are the centre grouping.
You cannot win by just getting the votes of the Labour peers – there are not enough of them. They have the majority but not an overall majority. So that is another restriction on the power of Government. It may not have been intended – we do not know.
BeforeGovernments could say, reasonably, once we produce some legislation, we can rely on getting it through. Now, they have to ask themselves a lot of different questions. They have to ask, first: Then they have to ask: Some of you may remember that, long ago inTony Blair produced five policy pledges.
Two of those pledges were to reduce class sizes and to reduce waiting lists in the National Hogdanor Service. Now those policies are outside his power with regard to Scotland, Wales and Northern Ireland. Consttution is up to the bodies there what they do about class sizes or National Health Service waiting lists.
So I think this is a further restriction on the power of Government, and you will probably know that, if you are a student, you do not pay fees in Scotland in the way that bogdankr do in England, because higher education is free in Scotland.
There is an amusing anecdote, which is in Paddy Ashdown’s diaries, that Blair berated Ashdown because the Liberals in Scotland were pressing for the abolition of student fees in Scotland. Blair said, ‘You can’t have a different system in Scotland from the rest of the country! You make yourself ridiculous if, the first time they try and use it, you say they can’t!
The only point in setting them up is they should do different things. Anyway, that is another hurdle that Governments face in getting policies through – it applies only to England. If you take areas like health, education, transport and so on, the Government at Westminster is no longer a United Kingdom Government; it is a Government solely for England. It is a major change; that the non-English parts of the United Kingdom are now governed quite differently.
So that is a further point. But of course there is a further limitation, which was there from a long time ago. Fromwhen we joined the European Union, Governments had to ask themselves: The European Court of Justice would say it is completely out of turn – it is illegal and you cannot do that.