The New British Constitution
Vernon Bogdanor
Hart Publishing
334pp
£17.95

Vernon Bogdanor’s The New British Constitution is a timely work. Most of the major constitutional reforming acts – aside from the establishment of the Supreme Court in 2005-09 – were passed in the first term of the Labour government. While these are still early days, one must concur with Bogdanor that ‘the constitutional reforms of the years since 1997 cannot be understood in evolutionary terms. They represent nothing less than a revolution in out constitutional affairs, a radical discontinuity from what has happened before… the new constitution is based on the idea of a constitutional state based upon a separation of powers. The sovereignty of Parliament is gradually and slowly coming to be replaced by the sovereignty of a constitution.’

Among the many changes wrought since 1997 (and by the Heath government, which anticipated several changes), Bogdanor singles out the Human Rights Act as the ‘cornerstone of the new constitution’ because it has brought positive rights into the vey fabric of law and interpretation and weakened parliamentary sovereignty. Bogdanor links the left’s interest in reform to the abandonment of the 20th Century socialist project, represented in Britain particularly by Nye Bevan, of using a strong centralised state to restructure society.

Bogdanor has set himself an ambitious target in writing this book; he is inviting comparison with the great late Victorian analysts – and advocates – of the old constitution of untrammelled parliamentary sovereignty, Bagehot and Dicey.  He is worthy of the comparison. The book is an illuminating guide to quite how much of what we used to know about the British constitution has ceased to be applicable in a comparatively short time.

One of Bogdanor’s similarities with Bagehot (although he is a better scholar by far) is that he writes with an unusual clarity. Where he makes an argument, it is clear what the proposition is. For the most part, I agree with him, but where I do not – as with the desirability of an elected second chamber – he offers is a lucid and coherent case that gives one pause. Bogdanor’s answer to the so-called ‘West Lothian Question’ has never been refuted, and his exposition of it here is a pleasure. If an issue involves public spending, there is virtually no such thing as an ‘England only’ measure, and the alternative solutions to the general issue are either more unjust or more absurd (such as an English Parliament, or a ‘legislative hokey-cokey’ at Westminster where Scottish MPs can vote on some clauses but not others in the same Bill). As long as the English do not kick up a fuss (and there is no sign that we will), the status quo can work. The West Lothian Question is, like ‘do you really love me?’ one of those questions that profits no one by being asked; one should be able to live with a certain amount of ambiguity and tension in how the UK-English-Scottish relationship works.

The new constitution is still emerging, but it is far from being the ‘mess’ that Labour’s opponents have claimed – be they the Liberal Democrats who want to turn the UK into a ‘proper’ federal state, or the Conservatives many of whom seem to hanker after a confused version of old-fashioned parliamentary sovereignty. A Labour, or Lib-Lab, future looks likely to develop the new constitution further, with primary legislative powers for Wales (and the development, therefore, of a Welsh legal system that differs from England’s), more devolution for Scotland à la Calman, hopefully electoral reform for the Commons and a sensible electoral system for the Lords, and a gradual increase in participative methods of government. The more interesting question left at the end of reading The New British Constitution is what happens if the Tories win. The answer implied by Bogdanor is rather comforting.

The test of a regime is its ability to survive a change of governing party. The new constitution has not passed this test yet. It is well known, probably to neither man’s delight, that Vernon Bogdanor taught politics to the undergraduate David Cameron in the 1980s. Cameron could certainly benefit from catching up with his studies. The New British Constitution demonstrates the constitutional elephant traps awaiting the Conservatives. The most obvious, conflict with the SNP government in Scotland, has been sensibly anticipated, and there is a convergence of strategic goals between the Westminster Conservatives and the SNP. The real trouble is with the inclinations of the unreconstructed Tory heart on some of the superficially less intractable bits of the new constitution, such as ‘English votes for English laws’, the validity of Wales as an entity, and the role and composition of the House of Lords. Bogdanor dissects the otiose call for a ‘British Bill of Rights’ (the Human Rights Act is exactly that) or the weakening of the Human Rights Act, an idea both the Conservatives and Tony Blair have dabbled with. The New British Constitution gives one confidence that, whatever they may try, the Conservatives are the wrong side of a tide of history and they are unlikely to make their alternative project function in the way they intend. A Tory government trying to devise, get through Parliament and then implement an entirely new framework of rights, and get the judiciary to accept new claims of executive power, would make the Heath government’s experience of codifying industrial relations law look simple. It will be quite a spectacle.