P OL I T I C A L STU D IES: 2000 VO L 48, 118–131
Review Article
Then and Now: the British Constitution
Nevil Johnson
Nuffield College, Oxford
The purpose of this article is to consider how writing about the British constitution
has changed during the past forty years or so. Rather more precisely, I intend to
draw comparisons between what was being written in the decade following on
from the establishment of Political Studies in 1953 and some of the work coming out
during the past ten years or so. My survey of published work has, however, not by
any means been exhaustive, and whilst several journals have been scanned (in
particular this one, but also Public Administration, The Political Quarterly and Public
Law) it has not been possible in this short article to take much direct account of
individual journal contributions.
Ever since the genre emerged in something like its modern form roughly in the
middle of the nineteenth century writing about the British constitution has been
concerned primarily with describing political and governmental institutions and
their working. Thus the focus has been mainly on the national institutions through
which Britain has been governed – their history and development, how they have
operated and changed, the principles on which they are held to have been based.
True, there was (and there still is in some measure) a body of writing by legal
scholars in which those norms and rules usually held to belong to the sphere of
‘constitutional law’ have been presented and analysed. The most enduring and
influential example of this kind of writing was, of course, A. V. Dicey’s Introduction
to the Study of the Law of the Constitution, first published in 1885. Yet even this work,
which significantly refers to the ‘law of the constitution’ rather than to constitutional law, contains much that is essentially political in the sense of presenting
institutional relationships, procedures and conventions. Though Dicey certainly
had great influence on how writers on the constitution approached their subject
he did not found a school of legal exegesis of constitutional law, whilst his great
contemporary, F. W. Maitland, regarded the definition of constitutional law as
simply a matter of convenience.1 The same lesson is to be drawn from the writings
of one of Dicey’s more recent and critical successors, Sir Ivor Jennings who was still
active in the 1950s. There is in Jennings’ work far more of politics and political
history than of legal dogmatics and deductive analysis. Indeed, even to this day
there is not to be found in British legal discussion of the constitution anything that
closely resembles continental European textbooks of constitutional law: whatever
bears that kind of title in English nearly always turns out to be mainly focussed on
institutional description, supported by what are held to be relevant illustrative
judicial decisions.
© Political Studies Association, 2000.
Published by Blackwell Publishers, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
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The dominance of a political and institutional treatment of the constitution and the
relative paucity of authoritative accounts of it in strictly legal terms reflects, of
course, the character of the British constitution. Whilst the norms it has expressed
undoubtedly owe much to certain elements of law, the constitution has never been
regarded as entirely a matter of law and has always been held to include a large
body of conventional custom and practice. On this account alone it has never been
formalized in a single document. Instead it has been understood far more as something like a summary of the terms on which Britain was governed and under which
the rights of the Crown’s subjects were safeguarded. This renders it predominantly
a political phenomenon, a set of relationships within and between institutions, and
between citizens and these institutions. There have been plenty of normative underpinnings, but what these relationships have actually meant has depended very
much on how at different times officeholders, political and administrative, have
behaved. It follows that most of those who have written about the constitution
have had to come to grips with two aspects of the matter. On the one hand they
have had to set out what they consider to be the rules and normative requirements
of the constitution. But in the light of the essentially political nature of the British
constitution they have also had to examine how those holding public office behave
and what actually happens, and then on this basis try to reach conclusions about
the state of the constitution at the time when they were writing. Not surprisingly,
this state of affairs has encouraged something like a continuing debate or argument: there has been little room for orthodoxies in British writing about the
constitution.
Then: the Approach in the 1950s
The growth of politics teaching in universities in the 1950s and the founding of the
Political Studies Association in 1953 signalled a steady, though undramatic increase
in the writing of books which dealt in some way or other with the constitution.
But the word ‘constitution’ was not so much in vogue as it is now, and much of
the work that can reasonably be put into the constitutional category deals with the
institutions and practices of British government and with certain features of British
political life. For the constitution in a more formal sense Jennings remained something of an authority. He was a lawyer who in the 1930s and later had written
explicitly on the constitution and constitutional law.2 But his most popular works
on major institutional aspects of the British constitution, Parliament and Cabinet
Government,3 offered a practical and political account of these two crucial dimensions of British government. Campion’s work on the procedures of the House of
Commons4 ranked as an authoritative guide to procedure by one of the most distinguished Clerks the House has had, and there were works on delegated legislation (a topic of much concern in the 1930s) which were still held in high esteem.5
Another widely read book was K. C. Wheare’s study of the use of committees in
British government in which it was argued that this practice was a distinguishing
characteristic of the constitution.6 There were also a few general surveys of British
government which established a reputation, for example H. R. G. Greaves’ book on
the British constitution and Wilfrid Harrison’s succinct commentary on British
government.7 It was within the more or less agreed framework established by such
writings that most of the then young scholars in politics departments began to
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make their contributions to the study of British government and the constitution
by which it was structured.
Most of the writing during the period 1953 down to about 1965 conformed to what
can be called the method of institutional realism. It was what was done through
institutions and how they were used which stood in the forefront of attention.
In this respect academics were perhaps unconsciously influenced by the example
set by Herbert Morrison in his book Government and Parliament: a Survey from Inside
which came out in 1954 and had been written with the support and encouragement of D. N. Chester, who had just then become Warden of Nuffield College,
Oxford. Morrison’s book, which was reviewed sympathetically in this journal by
its first editor, Wilfrid Harrison,8 is striking both for its robust defence of strong
party government and of the rights and privileges of the House of Commons as
the institution to which the Government must account. The plausibility of the
Morrisonian view was inevitably called into question as the academics began to add
substantially to the sum total of detailed knowledge of how different sectors of
British government operated. There was P. G. Richards’ book Honourable Members
in 1959, S. E. Finer on pressure groups in Anonymous Empire in 1958, G. Marshall
and G. Moodie’s Some Problems of the Constitution in 1959, and John Mackintosh’s
The British Cabinet in 1962. The last was in part a work of history, bringing up to
date an earlier study by Berriedale-Keith,9 but it also contained a lot of material on
the contemporary cabinet and on prime ministerial power which made a strong
impact on thinking about how Britain was governed at the top. Whilst most of the
work published in these years focussed on institutional description and analysis,
often drawing heavily on historical evidence and precedent, some of it did have a
more legal analytic bias, notably Marshall and Moodie’s work and the short but
highly perceptive study The British Statute Book (1958) by C. J. Hughes. There was
also in 1959 a new edition of Dicey with a long introduction by the jurist, E. C. S.
Wade.10
Three general comments should be made about the writing of this period insofar as
it dealt with the British constitution. First, any survey of it reveals clearly the
difficulty of distinguishing between study of the constitution and what is essentially
study of the methods and institutions of British government. Chester and Willson’s
historical account of the organization of British central government came out in
1957,11 Mackenzie and Grove’s Central Administration in Britain in 1959, C. H.
Sisson’s The Spirit of British Administration in 1960, and Chester and Bowring’s
Questions in Parliament in 1962.12 Now it could be argued that in all of these works
there are passages which bear on constitutional matters – how the allocation of
ministerial functions can be changed, how the civil service is managed and appointments in it made, how officials see their relationships with ministers, and how
ministers account to Parliament. Nevertheless, the principal preoccupation of these
authors was not with the constitution as such, but with various aspects of the
workings of British government and political institutions. In such work we can (if
we so wish) get at constitutional issues chiefly by reading between the lines and
drawing such issues out of the evidence provided about procedures and practices.
Second, as has just been suggested, most of the works which fall broadly into the
constitutional category are concerned with the structures and practices of government in Britain. The stress is on institutions. Insofar as there was a concern with
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individual rights and especially with the control of powers exercised in relation
to citizens this was more likely to figure in the work of jurists than of political
scientists. This view is borne out by reference to the pages of Public Law at this time.
In the volume for 1956 (the journal’s founding year) there is an almost book
length article on Administrative Jurisdiction by Sir Carleton Allen as well as an
essay on the Parliamentary Control of Delegated Legislation by Sir Cecil Carr, both
topics which had played a big part in the controversies preceding and following the
Donoughmore report of 1932.13 The Franks Report of 195714 focuses attention on
issues affecting procedural justice in administrative decision taking and points the
way forward to the growing interest on the part of lawyers in the Ombudsman
institution, ultimately introduced in 1967 in the shape of the Parliamentary Commissioner for Administration. But the lawyers still for the most part stay well
within the parameters of judicial rulings and case law. Third, and this may appear
to be a statement of the obvious, the work of academics specializing in politics
and modern British history does begin to add significantly to knowledge of how
the country was governed and what the conditions of political life were. This
achievement alone establishes a foundation on which it was to become steadily
more possible to challenge received assumptions about the normative aspects of
British constitutional arrangements.
However, during the period now under consideration there was on the whole little
inclination to quarrel with the terms on which Britain was governed. The traditional
political institutions and the terms on which they were held to operate received
general endorsement from most of those who were writing about British government and politics, and this alone meant that they were usually content to concentrate on fairly straightforward empirical studies. Their main concern was to provide
an objective account of particular aspects of political conditions and methods of
government in order to shed light on the rules of the game rather than to press
arguments for doing it all differently. What is more, most of those writing in the
1950s were experienced scholars, many of whom had during World War II been in
government service or in the armed forces. It is not surprising that they were more
concerned to offer a reasonably objective presentation of the evidence rather than
to engage in some sort of public advocacy of a particular point of view. Even a
strikingly provocative article such as S. E. Finer’s influential paper on ministerial
responsibility in 195615 has to be seen as a brilliant exercise in clearing away historical myths rather than as an attack on the constitutional doctrine of ministerial
responsibility as such.
However, round about the beginning of the sixties there are signs of a change of
attitude towards British political institutions and of what was to become the ‘what
is wrong with Britain’ era. Brian Chapman’s British Government Observed appeared
in 1963, an avowedly polemical attack on British administrative methods and the
cult of secrecy.16 In 1960 the Fabian Society published a pamphlet by Bernard Crick
on the reform of the Commons, a forerunner of his subsequent book on parliamentary reform which was to play an influential role in establishing a continuing
academic and political concern with Parliament and its procedures.17 This found
expression in 1964 in the formation of the Study of Parliament Group, an association of academics and clerks of both Houses of Parliament, which soon became
a familiar and respected source of proposals for parliamentary reform. Moreover,
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and this was a factor of critical importance, almost immediately after Macmillan’s
election victory in 1959 there are signs of anxiety about the future health of the
British economy, about the effectiveness of British methods of managing the
economy, and about Government policy making in this field. Terms like ‘decline’,
‘crisis’ and ‘challenge’ begin to creep in and confidence in the overall institutional
framework of British government shows signs of ebbing.
Yet it is worth remembering that towards the middle of the sixties it was still possible for a book to appear which perceptively made sense of the overall structure
of British government, used the term ‘constitution’ in its title, and argued persuasively
that there were two valid and even complementary ways of looking at the whole
matter. I refer to A. H. Birch’s Representative and Responsible Government: an essay
on the British constitution.18 After a thoughtful and critical discussion of conflicting
notions of representation in modern British political development, Birch examined
two perspectives on the constitution. One, the Westminster view, is essentially liberal
and parliamentary and focuses on the subordination of the executive to Parliament; the other, the Whitehall view, is much more executive or Crown oriented
and stresses the requirements of good government. It would not be easy to offer
this kind of detached analysis of overarching constitutional norms today, or a similarly
elegant synthesis of conflicting ideas about who and what should be represented in
a democracy.
The Interlude
The later 1960s and the 1970s were a time of rising social and political tension and
of failed experiments, notably indicative economic planning, Treasury macroeconomic management, trade union reform, and (in the 1970s) devolution. These
experiences prompted a large amount of ‘What is wrong with Britain’ writing.
Much of this was directed to the problems presented by the abuse of power indulged in by the trade unions and some of their followers, and to the increasingly
precarious state of the British economy. But some of it, and especially during the
1970s, was concerned with the constitution and issues like the electoral system.
The interest in electoral reform stemmed in part from the criticisms of the adversarial
nature of British political life made by many of those who contributed to the constitutional debate at this time.19 The increasingly critical mood of this period also
worked in favour of the much more frequent involvement of academics in research
and analysis on behalf of parliamentary and official committees of inquiry such as
the Fulton Committee on the Civil Service (1966–68) than had been usual even in
the 1950s.
When she came to power in 1979 the new Conservative leader, Margaret Thatcher,
had, however, no doubt where her priorities lay: they were focussed not on
constitutional reform, but on the state of the economy and how best to promote
greater efficiency in the production and use of resources generally. In essence she
wanted to restore an effective market economy. The interest she had shown in a
range of constitutional issues in the three years after her election in 1975 as leader
of the party quickly faded away and such matters were put resolutely on the back
burner.20 Yet the very success of Mrs. Thatcher in establishing her priorities in the
public mind was after some years to prompt a reaction against a too single-minded
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concentration on economic factors, markets, and the pursuit of efficiency. So in
the late eighties and on into the nineties a preoccupation with British political
institutions and their reform or ‘modernization’ became a growth area. This shift
of concern from economic to social and political issues finds expression in the
emergence of a variety of new ‘think tanks’ in this period, most of them small and
run on a shoe-string, but all anxious to contribute to the agenda of public policy
debate.21
In these new and rapidly changing conditions academics have faced difficult choices.
They could stand on one side and get on with their own academic research and
writing, but at the risk of having little or no chance of making any public impact.
Or they could take note of the new milieu of policy thinking and develop further
such ideas originating in it as they found persuasive and useful. Or they could quite
openly join this world of advocacy and advice. But in the sphere of political and
constitutional debate they then ran the risk of becoming propagandists for what
gradually emerged as a new orthodoxy about the constitution and the need to
reform it. However, whichever way the academic specialists in British government
jumped, they were destined to find themselves up against a far larger number of
competing commentators than had been the case not so long ago. One obvious
effect of this greatly expanded arena of public discussion of all manner of political
and policy issues, including the state of the constitution was that an increasing
proportion of the contributions come from writers who were not academics,
but predominantly journalists, publicists of various kinds, and employees of ‘think
tanks’ aspiring to enter politics.
Now: the Past Decade
In some respects the methods and approaches applied in recent writing on
the British constitution by political scientists do not show a radical departure from
what was usual forty or so years ago. The constitution has, of course, remained
non-formalized and this means that it has had to be studied chiefly in empirical
political categories. Even though the dimension of judicial rulings in relation to
executive activity in Britain has grown,22 the scope for conducting arguments in
the categories of constitutional law has not significantly widened, though as will be
noted in a moment the number of academic lawyers contributing to writing about
the constitution has increased significantly in the past decade. But the predominant
approach to constitutional studies has for the most part continued to involve a
concern with the analysis of institutions and of activity conducted in and through
them. Nearly all of the studies published in the 1970s and 1980s by members of the
Study of Parliament Group exemplify this preference.23 The continuing attachment
to institutional studies doubtless reflects the fact that it is not easy to apply quantitative methods or more formal model-building to constitutional issues or arguments. Institutional analysis in Britain has always embodied a substantial use of
historical and precedent-based evidence, and this in turn has often involved a large
element of evaluation of individual actions and specific decisions. This approach
does not lend itself to methods of analysis relying on generalized quantitative data,
nor can it be fitted into formal constitutional models such as those generated by
some public choice theorists. The one field of political analysis in which a more
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quantitative approach has been widely applied (though with varying degrees of
rigour) is electoral studies which have during the past twenty years and longer
enjoyed a prominence undreamed of in the fifties. But the links between the
analysis of electoral behaviour and constitutional questions are at best indirect.
Whilst it is possible that election studies and the effort to explain movements in
party political support over time may have provided evidence which can be used
by both sides in the argument about changing the electoral system to make it more
proportional, it remains true that the core issues in the argument about electoral
reform are normative. At best empirical evidence of the kind generated by political
scientists writing about elections and electoral behaviour may be regarded as
relevant to an assessment of the possible consequences of particular changes.
As already indicated, during the past decade a reformist stance in relation to the
constitution has become an almost unchallenged orthodoxy. A significant landmark in the transition to this position was the establishment in 1988 of Charter 88,
a loosely articulated reformist movement committed to the protection of civil rights.
It came to operate as a sort of umbrella organization, putting out ideas favourable
to constitutional change and encouraging other organizations, some of them
with more specific concerns, to work at the elaboration of a range of proposals for
reform. Gradually opinion amongst all the rather specialized publics interested
in British government and political practices came to be permeated by the conviction that constitutional reform was urgently needed, and that it should concentrate on the achievement of a bill of rights, electoral reform, further parliamentary
reform, including changes to the House of Lords, devolution for Scotland, Wales
and Northern Ireland, perhaps greater decentralization in England, and freedom of
information legislation. These items assumed the character of the accepted canon
of progressive improvements to be achieved by a concerted programme of constitutional reform. This evolution of opinion meant that more and more of what
was written on constitutional topics and on the state of British political institutions
began to combine description and analysis of contemporary institutions and their
functioning on the one hand with the explicit advocacy of change on the other. In
this recent period it becomes ever harder to come upon writing which is restricted
to explaining and analysing particular relationships and procedures without indulgence in reflections on how much better things might be if only the ground
rules were changed in some respects. No longer is there much sympathy for the
values embodied in the manner in which Britain had hitherto been governed.
Instead there is a persistent bias in favour of change and presumed improvement.
Public opinion at large did not, however, move as quickly as the advocates of
reform might have liked. The survival of a Conservative government in the election
of 1992 indicated that there was still substantial support for the economic priorities
established in the Thatcher years and hesitation about entrusting the Labour party
with power. However, first economic factors such as the effects of deepening recession and the failure of Britain’s short-lived membership of the ERM in 1992, and
then the political scandals associated with the later years of John Major’s period in
office began to have a powerful impact on a broad band of public opinion in the
country. All this reinforced the belief that Britain was badly governed, that its
institutions and practices were out of date, and that the standards of probity of
its politicians left much to be desired. Moreover, no matter how laudable his
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motives may have been Major, by instituting such bodies as the Committee on
Standards in Public Life24 and the Scott inquiry into the arms for Iraq affair,25
simply contributed to the growing mood of wholesale criticism of both his own
party and British political institutions. It is not, therefore, surprising that after the
death of John Smith in 1994 those who assumed the leadership of the campaign
to transform the Labour party into a vote-winning party were keen to exploit this
mood of discontent with existing political habits and methods. The cause of constitutional reform turned out to be remarkably convenient for all those in both
New Labour and the Liberal Democratic party who wanted to communicate
enthusiasm for modernizing change whilst at the same time maintaining a high
degree of continuity in many policy sectors, not least those of the economy and
industry. Furthermore, it was for the most part easy in party campaigning to
present constitutional reform in broad brush terms. It sufficed to propound a few
slogans such as modernization and democratization and then to back these up with
a commitment to such familiar objectives as devolution, better protection of human
rights and more responsive and relevant institutions generally. The detail could be
left to be worked out after power had been won and this is, broadly speaking, what
happened.26
It is within a context of this kind that the writing on constitutional issues which
has come out in the past decade or so has to be set. Some of it remains within
the limits of traditional exercises in institutional description and analysis, for
example Marshall’s study of constitutional conventions (1984), Shell’s account of
the House of Lords and its work (1988), or some of Norton’s studies of the role of
the House of Commons, especially in relation to the legislative process.27 Bogdanor’s
book on the monarchy and the constitution (1995)28 falls generally into the same
category, though many of his other publications in this period and earlier are
characterized by an effort to combine often painstaking analysis of various facets of
British political institutions with strongly committed advocacy of particular reforms
such as proportional representation or wider use of the referendum.29
Alongside work by political scientists there has appeared a relatively larger contribution on constitutional topics from academic lawyers than in the past, though
in the case of edited volumes many of the contributors continue to be specialists
in the study of politics and government. Brazier has provided solid commentary on
constitutional practices (1988),30 Jowell and Oliver have edited a collection of
essays on the ‘changing constitution’ which has gone into three editions since first
appearing in 1985,31 and there is a recent study of the Scott report and its constitutional implications by A. Tomkins which seeks to argue that the Scott inquiry
represents a crucial stage on the road to a regime of open government and freedom
of information.32 It is striking that neither in method nor in substance does the
writing by lawyers differ all that much from what the political scientists have been
offering. A straightforward descriptive treatment of institutions and practices
is generally preferred, an approach which can, of course, include both a certain
amount of historical evidence and discussion of recent judicial rulings and arguments. All this reflects the fact that there continues to be no explicit body of constitutional law and, therefore, no undisputed basis for constitutional interpretation
by the courts and legal commentators. As already mentioned, there has during the
past fifteen years or so been an increase in the number of disputes between
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institutions referred to the courts and a rise in successful applications for judicial
review. This has brought the judicial role into greater prominence, but its impact
has hardly yet added up to a new dimension of agreed constitutional interpretation. However, the ground rules have now been changed with the enactment
of the Human Rights Act under which the courts will be empowered to determine
whether statutory provisions and decisions taken under them breach the European
Convention of Human Rights.33 If such breaches are established it will be up to the
courts to declare the offending provisions incompatible with Convention rights,
and thus to put the onus of amending them in order to bring them within the
Convention on Parliament and the Government. Alongside this is the possibility at
least that devolution may bring with it disputes about competences which will fall
to be determined by the judicial committee of the Privy Council. By these routes there
may emerge at last a body of case law which could be designated constitutional in
the strict sense of that term.
Winds of Change
Much of the writing of recent years has been strongly critical of British constitutional methods. Hennessy’s book The Hidden Wiring: Unearthing the British Constitution
(1995) can be cited as one example with its criticism of the secrecy which in the
author’s view pervades all British governmental activity. F. Mount’s essay on The
British Constitution Now (1992) though benevolent in tone, argues that the system
of government has become too centralized and too rigidly directed from both
Westminster and Whitehall, whilst more than one of Bogdanor’s most recent publications is expressly concerned to recommend reform and change.34 The endorsement of far-reaching changes which is to be found in the majority of academic
writers on constitutional matters during recent years is even more strongly expressed
in the contributions to debate and advocacy made by organizations concerned with
public policy and the conditions under which Britain is governed. Mention has
already been made of Charter 88. Another leading member of this group has been
(and still is) the Constitutional Unit now located at University College, London,
and headed by Robert Hazell. This has engaged in an active campaign for a wide
range of reforms through the publication of pamphlets, the organizing of seminars
and discussions, and the stimulation of media comment. As a result of such efforts
the Unit has engaged the support of a substantial number of academic political
scientists and lawyers in its activities and, judging by the legislation already enacted
or planned, has been able to exert considerable influence in relation to the reform
process. Some of the bodies advocating change have been more on the fringes in
terms of direct influence on the present Government, but this does not necessarily
diminish the importance of the contribution they have made to consolidating a
climate of opinion favourable to reform schemes. Yet one of the few bodies known
to be linked with the Labour party, the Institute of Public Policy Research, appears
to have had little impact on the constitutional thinking of those who are now in
charge of the constitutional reform programme. It is of some interest to note that
it was this organization which produced in 1991 one of those rare attempts actually
to set out its constitutional reform proposals in the shape of a draft written constitution for the UK, published later as a hardback.35 It says much for the pragmatic
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nature of the reform programme in train since 1997 that nobody in a position of
public responsibility has seen fit to suggest that perhaps it would be worth thinking
about gathering all the changes together into a single code which might then be
regarded as equivalent to a formal constitution. No doubt that would be to take
radicalism to the extreme.
The literature on constitutional issues and relationships has thus become, a few
exceptions apart, far more ‘committed’ than it used to be. But at the same time it
has become more heterogenous and diverse both in respect of authorship and the
primary concerns pursued in it. There has been some decline in single author books
and an increase in the number of edited texts containing contributions from many
hands. And a substantial number of the books coming out are written and presented with an eye for the nowadays much larger student market. This generally
means simplification of the presentation and an emphasis on being right up to date.
As a result the shelf-life of much that appears is very short. All these trends
probably militate against a kind of writing which has always been comparatively
rare, namely the serious effort to elaborate and justify the principles on which past,
current and prospective constitutional practices are based. After all the ‘old constitution’ has been under attack for some considerable time and it looks now as
if it is being replaced by substantially different institutional relationships and
procedural conditions. Yet so far there has been little sign of an effort to provide a
coherent statement of whatever may be the unifying principles underpinning the
new settlement, to justify them as the foundation of what might become a new
body of constitutional law, and to set out the normative presuppositions of such
guiding principles along with a philosophical grounding for them. No doubt this
would be a daunting task, but one to which a political theorist or a philosophically
minded jurist might feel called. But so far the new dispensation has not found its
Hayek.36
Another aspect of contemporary constitutional comment which deserves a mention is the relative lack of concern with comparative evidence and perspectives,
some of which at least might have a bearing on the viability and realism of some
of the proposals and schemes in the reform programme. In contrast to Mr Podsnap
the majority of modern commentators on the constitution appear to assume as a
matter of course that foreigners generally do it better than we do, especially if they
are our partners in the European Union. But are human rights in every sphere
better protected elsewhere than in Britain? Are the processes of government
more open in France or Germany than they are here? Do the legislatures of other
countries publish anything like the quantity of material about public bodies and
their work which proceeds from Parliament in Britain? Are standards in public life
higher and the probity of officials greater in neighbouring countries than here?
Answers to such questions would not tell us exactly what to do in matters of constitutional reform, and it has to be remembered that comparison is both a difficult
exercise and inherently limited in the practical applications which might be derived
from it. Nevertheless, more comparative analysis of democratic constitutional
regimes and of particular features of them might have encouraged a more realistic
view of both the strengths and weaknesses of British arrangements than has
prevailed in recent years, and have indicated some of the inescapable limitations of
some of the reforms now in train.
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There is yet another feature of modern approaches to the constitution in Britain
which deserves mention. This is the relative decline of an interest in the defining
features of traditional institutional relationships and of the rule of law associated
with them. This interest always presupposed a concern with the historical evolution of the British constitution since it was generally agreed that it had developed
as a way of managing relationships in response to changing circumstances rather
than as a single set of interrelated and enforceable basic rules. There are historians
who retain this focus – for example Brian Harrison in his book on the changing
character of British politics between 1865 and the present day.37 But set against a
constitutional tradition which relied so extensively on precedent and, therefore, on
what was done in the past it is striking that historical foundations now receive less
and less attention. This might be less worrying were the concern with normative
principles and their justification stronger. But without either a strong historical
awareness or a close preoccupation with principles and deductions from them, it is
hard to discern what kind of new constitution can eventually emerge.
Does Writing about the Constitution Matter?
I will end by turning to a different kind of question: does writing about the
constitution matter much in modern Britain? One of the principal effects of the
academic study of the British constitution and the institutions sustained by it has
been the diffusion of far more empirical evidence about these matters than was
readily available say a century ago. This is not to suggest that Dicey and Maitland,
for example, were ill-informed in their respective spheres of interest, the one a
jurist concerned with contemporary affairs, the other a legal historian. Indeed,
Maitland was probably one of the most erudite and perceptive historians of English
law who has ever lived. But what was not available was a great deal of information
about ‘how things work’, and especially about specific key institutions in the then
contemporary constitutional structure. These deficiencies began to be remedied in
a substantial way in the period here designated as ‘then’, that is to say in the years
following World War II when politics as an academic field of study began to
develop. By the mid-sixties anyone interested in the terms on which Britain was
governed could turn to a considerable number of texts which would instruct him.
Most of these texts were relatively dispassionate in their approach to the subject
and did not seriously call into question the capacity of the British constitution to
sustain liberal values and a rule of law acknowledging such values. Thirty or so
years further on in the decade just ended the constitution as such has been more
often invoked in the title of works dealing with British institutions, indicating at
the very least a particular focus of interest. As far as methods of analysis go no
striking changes have occurred – they remain predominantly descriptive, preoccupied with contemporary history, and dedicated as a rule to explanation within
institutional contexts. This remains predominantly the case even in the
contributions made to constitutional discussion by the rather more numerous
cohort of jurists who have turned to the topic. But in comparison with earlier years
a change of tone and evaluation is apparent: the constitution becomes for the
majority of those writing about it a highly problematic matter. What it means
or whether it even exists is more often in dispute, whether it serves the ends
of good government is questioned, and there is an increasingly strong tendency to
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conclude that without extensive renewal it cannot meet contemporary needs and
values.
Turning back to the question posed, the generation of more knowledge of the
operations of British institutions obviously mattered in the sense that this yielded
material on which people could eventually form judgements, critical or otherwise.
The emergence in recent years of a more critical view of the adequacy of the
constitution has clearly encouraged shifts of opinion in society generally and in
political and legal circles in particular about the possibility and the desirability of a
‘reform agenda’. To this extent the more recent writing about the constitution has
also had an impact and has no doubt influenced many in public life in their conversion to a reform agenda. Nevertheless, the constraints imposed by events and
circumstances and by previous policy decisions have also suggested to many the
need for changes in constitutional conditions, for example the continuing erosion
of sovereign decision making by British governing institutions as a consequence of
membership of the European Community, or the disappearance of Conservative
party national parliamentary representation in Scotland and Wales.
On the other hand, if we ask whether recent writing on the constitution has been
widely regarded as offering anything in the shape of authoritative guidance either
on the meaning of the traditional constitution or on the terms on which reforms
can and should be made, then a more modest answer has to be given to this
question. There is neither a jurist who can claim something like Dicey’s authority,
nor a political scientist whose judgements on political institutions are treated with
the respect given in the past to figures like Lord Bryce (politician, admirer of the
USA and jurist) or A. L. Lowell (the archetypal sympathetic American commentator
on British institutions).38 Nor are there specialists on British government whose
views carry quite the same weight as did those of scholars such as K. C. Wheare,
W. J. M. Mackenzie or D. N. Chester forty or so years ago. Yet this situation may
have little or nothing to do with the quality of scholarship displayed in the writing
of ‘then’ and ‘now’, though there are certainly pressures at work now which
encourage a briefer treatment of the subjects handled, a wider coverage of topics,
and an approach directed more to student readers than to a sophisticated and
specialized audience. Far more decisive for most political writing is the fact that we
live in a world dominated by instant media comment, for which a negative and
critical stance is far more attractive than a concern for constructive or well-founded
commentary. It is extremely difficult for the academic writer on what are, after
all, current concerns and developments to escape the influence of this wider
environment of tendentious comment and discussion. He is under pressure to
simplify issues, to highlight whatever difficulties and faults are presented by the
evidence, and to indulge the natural human impulse to pronounce judgement and
to ask for improvement. It is precisely because the British constitution has been and
remains such a highly political matter that those who study it are now so much
exposed to these pressures. Were it to be transformed into a genuine body of
higher law, difficult to change and the object of authoritative interpretation by
judges, the role of the political scientist would very likely be substantially
circumscribed by the new opportunities then opened up for the jurist.
(Accepted: 28 June 1999)
130
N EVIL J O H N SO N
About the Author
Nevil Johnson, Nuffield College, Oxford OX1 1NF, UK.
Notes
1 F. W. Maitland, The Constitutional History of England. Cambridge: Cambridge University Press, 1908, ‘The
Definition of Constitutional Law’, p. 526–39.
2 Amongst the works specifically on constitutional law by Sir Ivor Jennings are The Law and the
Constitution. London: University of London Press, 1933, 1st ed.; 1959, 5th ed.; The British Constitution.
Cambridge: Cambridge University Press, 1941, 1st ed.
3 Sir Ivor Jennings, Parliament. Cambridge: Cambridge University Press, 1939, 1st ed. 1954, 2nd ed.;
Cabinet Government. Cambridge: Cambridge University Press, 1937, 1st ed.; 1959, 3rd ed.
4 Sir Gilbert Campion (later Lord Campion), An Introduction to the Procedure of the House of Commons.
Basingstoke: Macmillan, 1958, 3rd ed.
5 Sir Carleton Allen, Law and Orders: an inquiry into the Nature and Scope of Delegated Legislation and
Executive Powers in England. Stevens, 1945.
6 K. C. Wheare, Government by Committee: an Essay on the British Constitution. Oxford: Oxford University
Press, 1955.
7 H. R. G. Greaves, The British Constitution. London: Allen Unwin, 1938, 1st ed.; 1955, 2nd ed.;
W. Harrison, The Government of Britain. London: Hutchinson, 1948, 1st ed.
8 Political Studies II (1954) pp. 282–3. Review of Morrison’s book by W. Harrison.
9 A. Berriedale-Keith, The British Cabinet System (2nd ed. by N. H. Gibbs). London: Stevens, 1953.
10 A. V. Dicey, Introduction to the Study of the Law of the Constitution (10th ed. with an intro by E. C. S.
Wade). Basingstoke: Macmillan, 1959. Dicey’s work has not been reissued since this date.
11 F. M. G. Willson, The Organization of British Central Government 1914–56; a survey by a Study Group of the
Royal Institute of Public Administration (edited by D. N. Chester). London: Allen and Unwin, 1957.
12 W. J. M. Mackenzie and J. W. Grove, Central Administration in Britain. London: Longmans, 1957;
C. H. Sisson, The Spirit of British Administration. London: Faber and Faber, 1959; D. N. Chester and
N. Bowring, Questions in Parliament. Oxford: Oxford University Press, 1962.
13 Report of the Committee on Ministers’ Powers (Donoughmore), Cmd 4060 (HMSO, 1932).
14 Report of the Committee on Administrative Tribunals and Enquiries (Franks), Cmnd 218, (HMSO,
1957).
15 S. E. Finer, ‘The individual responsibility of ministers’, Public Administration, XXXIII (Winter 1956),
p. 277.
16 B. Chapman, British Government Observed. London: Allen & Unwin, 1963. This slender work provoked
D. N. Chester, then editor of Public Administration, into a ferociously critical review article in that
journal, 41, 4 (Autumn 1963).
17 B. Crick, The Reform of Parliament. London: Weidenfeld and Nicholson, 1964. The dust jacket on this
edition refers to ‘The crisis of British Government in the 1960s’.
18 A. H. Birch, Representative and Responsible Government: an Essay on the British Constitution. London: Allen
and Unwin, 1964.
19 For a fairly typical example of criticism of conventional party politics and of a plea for electoral reform
see the collection of essays Adversary Politics and Electoral Reform, edited by S. E. Finer. Antony Wigram,
1975. The author of this article contributed to this volume.
20 A good example of Mrs Thatcher’s approach to constitutional questions at this time was her treatment
of the Report of the Conservative Review Committee on the House of Lords. This was set up in 1977
by Mrs Thatcher and chaired by Lord Home of the Hirsel. Its report was published by Conservative
Central Office in 1978 and contained carefully constructed proposals for reforming the composition
of the House. Though in private conversation with the author (who was a member of the committee)
Mrs Thatcher expressed interest in the proposals, once in office the matter was dropped entirely.
21 The term ‘think tank’ has distinctively contemporary and transatlantic associations, and usually
suggests a direct concern with policy formulation and advice. There are, however, older organizations
which have endeavoured to shape opinion and from time to time to contribute policy debate, for
example the Fabian Society (a late nineteenth century creation to advocate socialist ideas) and the
Institute of Economic Affairs (founded in 1957 to propagate free market thinking).
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22 For comments on judicial interventions see N. Johnson, ‘The Judicial Dimension in British Politics’ in
H. Berrington (ed.), Britain in the Nineties: the Politics of Paradox. London, Portland, OR: Frank Cass,
1998.
23 Since its foundation in 1964 the Study of Parliament Group has sponsored numerous studies of
different aspects of the working of Parliament. Notable amongst these were A. H. Hanson and B. Crick
(eds.), The Commons in Transition. Fontana, 1970. (Further revised versions appeared in 1977, 1981
and 1988); S. Walkland (ed.), The House of Commons in the Twentieth Century. Oxford: Oxford University
Press, 1979; G. Drewry (ed.), The New Select Committees. Oxford: Oxford University Press, 1985 and
1989; M. Rush (ed.), Parliament and Pressure Politics. Oxford: Oxford University Press, 1990.
24 The Committee on Standards in Public Life was set up as a standing body in October 1994 under the
chairmanship of a senior judge, Lord Nolan (now succeeded by Lord Neill). Its first report was published in May 1995 (Cm 2850–1) and quickly led to the appointment of a Parliamentary Commissioner for Standards and to a tightening up of both the organization in the House of Commons for
policing interests and of the rules for the declaration of interests by Members of Parliament.
25 Report of the Inquiry into the Export of Defence Equipment and Dual-use Goods to Iraq and Related Prosecutions
(Scott). HMSO 1996, 5 vols.
26 In the case of Scottish devolution much preliminary work on how best to achieve this in a statute had
been done by the Scottish Constitutional Convention which first met in 1989 and produced a report
entitled Towards Scotland’s Parliament in 1990. The Convention in turn set up a Scottish Constitutional
Commission after the 1992 election which reported on devolution possibilities in 1994. The Labour
party was closely associated with the work of the Convention and endorsed its proposals.
27 G. Marshall, Constitutional Conventions: the Rules and Forms of Political Accountability. Oxford: Oxford
University Press, 1984; D. Shell, The House of Lords. Oxford: Philip Allan, 1988; P. Norton, The Constitution in Flux. London: Martin Robertson, 1982; and The Commons in Perspective. Oxford: Blackwell,
1985.
28 V. Bogdanor, The Monarchy and the Constitution. Oxford: Oxford University Press, 1995.
29 V. Bogdanor, Multi-party Politics and the Constitution. Cambridge: Cambridge University Press, 1982; The
People and the Party System. Cambridge: Cambridge University Press, 1981.
30 R. Brazier, Constitutional Practice. Oxford: Oxford University Press, 1988.
31 J. Jowell and D. Oliver (eds), The Changing Constitution. Oxford: Oxford University Press, 1985.
32 A. Tomkins, The Constitution after Scott: Government Unwrapped. Oxford: Oxford University Press, 1998.
33 Human Rights Act 1998. Under S 4 the courts may make declarations of incompatibility in cases
where they decide that a provision of primary or secondary legislation is incompatible with a European Convention right as set out in Schedule 1 of the Act.
34 V. Bogdanor, Power and the People: a Guide to Constitutional Reform. London: Gollancz, 1997.
35 Institute of Public Policy Research, A Written Constitution for the United Kingdom. London, New York:
Mansell, 1995. The text of this draft constitution was prepared by James Cornford, formerly Professor
of Politics at Edinburgh University and at this time director of the IPPR.
36 The allusion here is to F. A. Hayek, The Constitution of Liberty. London: Routledge, 1960; and Law,
Legislation and Liberty 3 volumes. London: Routledge, 1973–79.
37 B. Harrison, The Transformation of British Politics 1865–1995. Oxford: Oxford University Press, 1996.
38 A. L. Lowell, The Government of England. Basingstoke: Macmillan, 1908, 2 vols.