A creaking edifice in need of repair

The New British Constitution
By Vernon Bogdanor
Hart Publishing (£17.95)

Vernon Bogdanor’s lapidary book appears at a febrile constitutional time. As he makes clear, we have a parliament which sees itself as sovereign, yet it is viewed with contempt. It has been debased partly by the grubbiness and occasional criminality of its members, and partly by news media which have over the decades ratcheted up their own contempt for politicians and politics. No history of this period can do other than see in the expenses fiddles an all-too-human but still shocking effort at self-enrichment. Nor should it ignore the part that powerful but analytically impoverished media have played in manuring the ground to make it fertile for the vast crop of scandal now being reaped.

The book’s purpose, implicit in the title, is to show why the formulas beloved of Walter Bagehot and A.V. Dicey, 19th-century celebrators of the constitution, no longer hold. Dicey wrote in 1886 that, “under all the formality, the antiquarianism, the shams of the British Constitution, there lies latent an element of power which has been the true course of its life and growth ... the secret source of strength is the absolute omnipotence, the sovereignty of parliament”. These shams, coupled with that omnipotence, depended on a series of conventions – the capstone of which is the need for the Queen’s assent to legislation – which are now at hazard. They include the Lords’ self-policed subordination to the elected Commons, the inviolability of the Speaker and the absolute power of Westminster over all subordinate elected bodies.

So we are constitutionally unsettled. Dicey’s “secret source of strength” is neither secret – a harsh light shines on parliamentarians’ affairs – nor is it strong. Bogdanor’s theme is that New Labour’s largest project, inchoate and even accidental as it often was, has been constitutional change; and the change has been “something unique in the democratic world. We have been transforming an uncodified constitution into a codified one, but in a piecemeal and ad hoc way”. By chance we have been getting a constitution.

What are the elements of this constitution that have sneaked up on us? They include the Human Rights Act; the European Union; the devolved assemblies of Northern Ireland, Scotland and Wales; and less obviously the frequent recourse to referendums, the greater activism of a House of Lords shorn of most of its unelected members, and the election of city mayors, especially in London. The Human Rights Act has greatly increased the power of judges; the EU treaty has put another legislature above Westminster. Parliament, de facto, has abdicated its authority.

Bogdanor has two dates in mind for the destruction of the Dicey-Bagehot world. The first is 1968, when the Marx-Lenin-Marcuse-Fanon-Leary-inspired protest movement aimed to “bring the people more fully within the pale of the constitution” (I have my doubts).

The second is the general election of February 1974, when a hung parliament produced a Labour minority government and a surge in strength of the marginal parties – the Liberals and the Nationalists. Events after these – the need to pacify Northern Ireland, to defuse Scots and Welsh nationalism and to cope with the demands of EU legislation – grew larger and larger in the public agenda, and prompted the constitutional activism of New Labour.

With a quasi-constitution in a quasi-federal state, should we not move to write the constitution down so that, as Bogdanor argues, we at least know what it is? It will not, of course, solve all problems: Italy has a beautiful social democratic constitution and now has an ugly centre-right government; the US’s exemplary founding document fluttered over the enslavement of black Americans and the massacre of the native Americans. Though one can now – and Bogdanor does – get some fun out of the boosters of the British political genius, it was better than most of what was globally available.

And it still isn’t bad, relatively. But Dicey’s “shams” no longer cut it. There is no logic in proposing greater or lesser constitutional change to deal with expense fiddles. Yet the fact that the political class has reached for such change reflects more than opportunism (though it does that too). It points up that the edifice is not just creaking: it is screaming for repair.

This book is written with a vigorous clarity, with easy expertise and with quiet wit. Bogdanor is himself a part of the constitution, an unacknowledged legislator: the book is a revel-ation. More, it is a reproach to journalism, that we have not more clearly explained a great shift of the past decade. He has.

The writer is an FT columnist