Vernon Bogdanor reflects on how the UK’s constitutional landscape has evolved since Robert Hazell established the Constitution Unit in 1995 and considers whether the time has come to draw up a codified constitution.
I was asked many years ago by OUP to be a referee for the book proposed called Constitutional Futures. I said:
‘This is a book that seeks to outline the issues of constitutional reform. It is being sponsored by The Constitution Unit, an authoritative and highly regarded organisation. The head of the Unit is a well-known writer in this field, Robert Hazell, who has studied the field for years and writes with authority. He is thoroughly familiar with recent scholarship but he also writes clearly and he does not employ the political science jargon which so often disfigures such works. There is no real competitor in the market.’
The book was published at the beginning of the period of constitutional reform. At the time Bagehot’s famous statement about the British constitution was true (in a way I do not think it is any more):
‘There is a great difficulty in the way of a writer who attempts to sketch a living constitution – a constitution that is in actual work and power. The difficulty is that the object is in constant change’. (p.5).
This difficulty arose because in 1997 the British constitution was what Dicey called a historic constitution. By that he meant not just that it was very old but that it was original and spontaneous, the product not of deliberate design but of a long process of evolution.
Sidney Low declared later that ‘other constitutions have been built; that of England had been allowed to grow’ (pp. 5-6). This, I think, is no longer true. It would be interesting to imagine a Rip van Winkle who had gone to sleep in 1995 when the Unit was founded and woke up today. He would be very surprised at the differences!.
In 2009 I wrote a book called The New British Constitution in which I listed 15 major constitutional measures that had occurred since 1997. Of course, that process continues today. These reforms have been introduced in a piecemeal, unplanned way and as a result we have not noticed them in the same way we would have if they had been added to a written constitution. The new measures mean our constitution is no longer wholly historic but in large part it is the product of human action, having been partly designed and planned. We have been involved in a process that is probably unique in the democratic world of converting an uncodified constitution into a written or codified one, although with no clear view of what the final resting place will be.
One of the characteristics of all of the constitutional changes is that they have limited the scope of government so that Britain is no longer an elective dictatorship.
Formally, Westminster remains sovereign over the devolved bodies in Scotland, Wales and Northern Ireland. But, in practice, it has no more than a nebulous, supervisory power over them. Similarly, although formally the Human Rights Act retains the sovereignty of Parliament, in practice the judges have a greater influence.
Governments now have to ask questions about proposed legislation that they didn’t have to ask before 1997. Firstly, they have to ask is whether the remit of their legislation would actually carry in Scotland, Wales and Northern Ireland? Secondly, is it compatible with the Human Rights Act? Thirdly, given that the House of Lords is more assertive with the removal of the hereditary peers can we get the legislation through the House of Lords? And, perhaps with changes of behaviour – not a constitutional change but a behavioural one, since more MPs are prepared to defy the party whip – can we get it through the Commons?
So government has become more limited and this gives us a greater degree of liberty. Someone once defined liberty as power cut into pieces, and I think the reforms since 1997 have cut power into pieces.
This leads to several conclusions. First, the UK constitution is incomplete and it has not had all of the beneficial effects that reformers wanted to secure. Indeed, if one lives in England it is arguable that constitutional reforms have made very little difference. What these reforms have done is to cut power into pieces by redistributing power between the professionals and elites involved in politics and the law – between politicians in Westminster and those in Scotland, Wales and Northern Ireland, and also in London where there is a Mayor; and between politicians and judges.
To put it crudely one could say that so far the officer class has been dividing up the spoils. There has not been a redistribution of power between those professionally involved in politics and law, and the people. This may be one of the reasons for disenchantment with politics. Opinion surveys seem to show that young people, who are the most disengaged from politics, are as interested in politics as young people 40 years ago but they do not feel themselves well represented by current political institutions and parties. That is one reason why turnout has fallen.
The second conclusion is that we are moving towards a very different constitution. Devolution is one of the key elements here, because the establishment of the Scottish Parliament was, from the point of view of Westminster, an act of devolution. But from the Scottish point of view, it was a recognition of their claim to popular and national sovereignty, which conflicts with the sovereignty of Parliament.
This leaves us half-way between a constitution in which Parliament is sovereign, and one in which the people are sovereign, and there is a tension here between our constitutional reforms and new social forces. It seems to me that the tension can only be resolved through a codified constitution. Indeed, if the people are to take a more active role, they are entitled to know what the rules are: if Parliament is sovereign, what meaning can be attached to the rule of law? Can Parliament override human rights? Will further devolution, put the union at risk? What are the limits of devolution? What about the relationship between Parliament and Europe?
Robert Hazell has always said that these reforms themselves yield a dynamic which sparked pressure for further reforms, and he likes quoting the comment made by Ron Davies, namely that devolution in Wales was ‘a process and not an event‘. Robert says rightly that this is true of constitutional reform in general. Perhaps we have reached a constitutional moment in which further progress can only be secured by drawing up a codified constitution? If so, the Constitution Unit will be in the vanguard of thinking of what that constitution should contain.
This post is adapted from Professor Bogdanor’s speech at the Constitution Unit’s 20th Anniversary event, held on 23 June 2015.
About the Author
Vernon Bogdanor CBE, FBA is Professor of Government at King’s College London.