When you pick up The New British Constitution and ask what new constitution that might be, one answer is that the British constitution, because it is always changing, is always new. But the veteran political scientist Vernon Bogdanor goes further. His thesis is that since the election of the Blair government in 1997 the pace and depth of constitutional change have increased to a point where a new shape of the state, though still fuzzy in outline and incomplete in detail, can be discerned and described with some confidence.
Riskily, however, Bogdanor takes the cornerstone of the new constitution (the metaphor is his) to be the 1998 Human Rights Act. The sustained media assault on the act and on the European Convention on Human Rights which it patriates has scared ministers and shadow ministers alike into blaming the act for everything that goes wrong in the justice system.
The Sun's casual description of it (in a news story) as 'the hated law which frees murderers to kill again' has been internalised by the political culture to a point where the opposition has felt able to pledge repeal of the act without – so far – any firm indication of what will follow. Yet unless it withdraws from both the Council of Europe and the EU, the UK will still have its treaty obligation to respect the convention. Will the right of individual petition to the Strasbourg court be revoked? If a new code of rights and obligations is to replace it, will it be convention-minus, convention-plus or just convention-lite? Labour too is looking for ways of hedging or qualifying the convention. Only the Lib Dems seem inclined to defend it. Whatever happens next, Bogdanor's cornerstone currently looks insecure.
The edifice which he nevertheless sees rising up above it is a pretty ambitious one: no longer a parliamentary democracy in which ultimate power resides in a representative legislature but a popular democracy based on localised devolution of power, reflecting the individualism which both Thatcher and Blair have validated, fuelled by the participatory potential of information technology. And since, he argues, most of the big constitutional changes of our era have been statutory – the European Communities Act 1972, the Human Rights Act 1998 and so forth – it is no longer problematical to assemble what happens into a written constitution.
Utopian or dystopian? It's not simply that freezing the frame at an arbitrary point of time is a recipe for constitutional paralysis. It's that, if change is in truth destined to go in the direction Bogdanor predicts, democracy will not necessarily be any richer or the way we are governed any better. Anybody with experience of community politics will know how vulnerable it is to demagogy, to sectional interests, to parochialism and, when big issues or money are involved, to hijacking. That may not make it any worse than what we now have, but it won't make it a whole lot better. Bogdanor's description of the political philosophy of individualism as 'cutting power into pieces' may be well chosen; but to say, as he does in the next breath, that this corresponds with the liberal concept of limited government is to make a very large set of assumptions.
Bogdanor's starting point is, as it has been for the whole of his generation of political scientists and my generation of constitutional lawyers, the writings of Bagehot and Dicey. Bagehot, in his bright and energetic prose, went out of his way to stress how little separation actually existed in mid-Victorian Britain between the executive and legislative powers of the state located in cabinet and Parliament. He was right to point it out but wrong to support it. The dominance of Parliament by ministers and their departments was and remains a major issue for parliamentarians.
But Bagehot's sound account of the organic nature of the constitution stood and stands in sharp contrast to Dicey's iconic reverence for the arrangements he chose to see and describe. Leaving aside his xenophobic and counterfactual insistence that Britain, unlike France, had no body of administrative law, Dicey's doctrine of parliamentary supremacism stood firm until Home Rule came up: then he changed his mind and argued that there were some things that even Parliament couldn't do. This apart, Dicey's was a classic endeavour to enshrine what happened (or what he claimed happened) as what ought always to happen, and Bogdanor is wise, arguably even generous, to describe Dicey's account of the Victorian constitution as 'perhaps … reasonably accurate'.
His argument, however, is that that was then and that what has now happened has made much of it irrelevant. This is the clean break he needs if he is to make good his 'new constitution' thesis. But is it really there?
The first turning point, Bogdanor suggests, was the enactment in 1972 of a UK statute making European Union law superior even to Parliament's legislation. The statute has certainly operated at that radical level, but what is perhaps equally important is that it is no more than an act of Parliament and can still be repealed by a simple majority. That does not necessarily suggest a constitutional measure.
Nor does the occasional use since 1975 of referendums, admittedly a measure of direct democracy even if heavily mediated by the way the question is put; nor the introduction of PR for European elections. But Bogdanor's big argument is that since 1997 constitutional change has gone into overdrive. He lists 15 measures, starting with the withdrawal of the Treasury's hand from the Bank of England's monetary policy, and running through the devolution of major central powers, the increasing use of PR and the introduction of mayoral government, to the partial reform of the House of Lords, the Freedom of Information Act, the regulation of political parties and their funding, and the recasting of the judicial system.
The last of these is without doubt a real shift in the shape of the constitution. The law lords this autumn cease to be members of the legislature and become a distinct supreme court. The umbilicus linking judiciary and cabinet has already been severed as the lord chancellor has ceased to be head of the judiciary and become a rank and file minister, and as an independent commission has taken over his role of appointing judges. But Bogdanor makes the cogent point that if, instead of the disorderly and protracted way in which these changes have been introduced, they had been carried out in a single methodical swoop, the arrival of a new constitutional order would have been all but undeniable.
What is more, a constitutional moment of truth is nowhere near as imminent as Bogdanor suggests. He thinks there is a conflict, created by the Human Rights Act and developing at what he calls remarkable speed, between the judges on one side and government, Parliament and the people on the other. This is an analysis which owes more to tabloid journalism than to constitutional reality. The reality is that, without taking the last word away from Parliament, the Human Rights Act has given the courts a voice in determining the compatibility of legislation with the convention, and Parliament and government have had the wisdom to heed the courts' advice on the relatively few occasions when it has been negative. The law lords' holding that the indefinite detention of foreign nationals on security grounds was contrary to the convention was accepted – albeit through gritted teeth – and different legislation introduced.
That is not conflict: it is part of a major constitutional shift, initiated not by the judges but by Parliament, by which the judicial functions of statutory interpretation and protection of fundamental rights have been dovetailed with the legislative process. Inevitably, the media's badmouthing of the Human Rights Act has succeeded in obscuring this constitutional achievement, but it is a pity that Bogdanor buys into it.
That there remain areas of law in which the judges are frustrated with Parliament (the proliferation and complexity of criminal justice statutes, for example) and others where ministers are fed up with judges (for example in areas of asylum law) is not a harbinger of crisis or breakdown: it's what happens under the rule of law in a democracy. It might be otherwise if Bogdanor's assertion that 'the judiciary is the only one of the three branches of government to hold unchecked and unaccountable power' were correct; but to believe this you would need never to have read a reasoned judgment, and to have forgotten that Parliament has not only final legislative power but sits on ethical questions as judge in its own cause.
The still larger question, whether constitutional change has now acquired a critical mass or is simply happening as it always has done, may be less important than the fact that no constitution, except perhaps that of a moribund state, stands still, and that ours is and for some time has been, as Bogdanor says, changing before our eyes. The devolution of major state powers to Scotland in particular is a true constitutional change, both because it is in practice irreversible without the consent of the Scots and because it is capable of having opened the door to a unilateral declaration of independence.
The changes to the judicial system are also probably irreversible, despite their not inconsiderable problems. The requirement to apply for all judicial posts is no doubt an advance on the tap on the shoulder from a lord chancellor who has been taking private soundings from senior judges – itself an advance on Lord Salisbury's belief (cited by Bogdanor) that an unwritten law dictated 'that party claims should always weigh very heavily in the disposal of the highest legal appointments'.
But the self-promotion that applications involve does not necessarily reveal the best candidates. Nor has it done much so far to redress the imbalances on the bench of gender and ethnicity. This is not because the appointments commission has been less than conscientious in its efforts. It is because the legal profession itself does not give women and minorities the same chance to shine as their white male counterparts. The real stars probably shine anyway; but the critical difference is with the average – sometimes very average – white male practitioner who can still reach the upper tranche of the practising profession. You cannot constitutionalise this problem: it has legal aspects but it reaches deeper than any law.
The Committee on Standards in Public Life, whose proposals are awaited, has a great deal to think about. Will modifying the allowance system answer the underlying problem of a parliamentary salary which many think incommensurate with the status and responsibilities of an MP? Will enhancing the salary be an acceptable solution if second jobs and employed relatives continue to be tolerated? Then there are Parliament's own composition and procedures. Should it continue to be possible for a single MP to sink private members' bills which otherwise have the support of the whole house? Should a member of either house who has declared an interest be able, unlike a local councillor, to remain and vote? Are we ever going to resolve the West Lothian question?
And what is to become of the upper house? Election of its members will, on a strategic level, deprive prime ministers of ultimate control of its composition, and on a political level may challenge the legitimacy of the Commons. Although ministers have now settled on a four-fifths elected chamber, on what basis are the members to be elected? If after 12 years of proposals and withdrawals we still do not know, it may be less because of political hesitancy than because the issue is genuinely intractable.
Bogdanor, a vastly knowledgeable writer, is long on voting systems but short on these much bigger questions. Yet without answers to them any new constitution would be a lame thing. By no means uniquely, the UK's constitution is not a fact but a process, a space to be watched. Ineluctably and unevenly, the old order changes; but to assert that it has become a qualitatively new dispensation is, at least for the present, to jump a gun which may never go off.
This is an edited version of an article
that first appeared in the London Review of Books
The New British Constitution
by Vernon Bogdanor
Hart, 319 pp., £45 and £17.95, June, 978 1 84113 671 4
