This Way to the Ruin
- The British Constitution by Anthony King
Oxford, 432 pp, £25.00, November 2007, ISBN 978 0 19 923232 1
Does Britain need a written constitution? Of course it does, which is why, as Anthony King points out at the start of this readable and illuminating book, it has one already. Whatever its detractors might think, Britain is not some folkloric society governed according to immemorial custom on the nod and the wink of the people in the know. Most of the rules of modern British political life, from the 1701 Act of Settlement on, are set down in statutes, which in total run to many hundreds of pages and cover everything from the maximum duration of Parliaments to the relationship between British and EU law. Not everything is written down – there are no statutes determining the role of the prime minister or fixing the responsibilities of cabinet government – but then again, no constitution has everything written down. The American constitution, which is often held up as a model of all-seeing sufficiency, leaves a great deal out, including the rules governing the country’s electoral system: the principle of first past the post is an integral feature of the constitutional order, but nowhere is this actually specified. In fact, it is rare for modern constitutions to fix the details of the electoral system. This is perhaps because one of the few that tried – the Weimar constitution, Articles 17 and 22 of which established that all federal elections should be conducted according to the principle of proportional representation – was such a disaster.
What Britain lacks is not a written constitution, but a codified one. Codification – or what King calls ‘Constitutions with a capital C’ – joins all the different written provisions together, and tries to provide them with some underlying coherence. Where that coherence is lacking, the process of codification requires some of the existing documents to be rewritten or jettisoned altogether. The distinctive character of Britain’s constitutional arrangements is a reflection of the fact that it has never been through such a process, and so it is not really clear how all its different bits do fit together. Britain also lacks a set of written rules that establish how the constitution can be changed. Almost all capital-C constitutions have provisions of this kind; the business of codification encourages people to reflect on the circumstances in which it is appropriate to rewrite a constitution, and this usually means removing the drafting of constitutional amendments from the normal political process. But in Britain, Parliament can draft new statutes amending the constitution any time it likes, and it does not have to worry whether these new statutes can be justified in relation to what exists already. The result is that, to many eyes, the British constitution is just too easy to tinker with.
But despite the fact that the British constitution has been tinkered with a great deal over the past generation, and the past decade in particular, this is probably the wrong lesson to draw. The salient feature of British constitutional politics is that it is just an extension of politics per se, and how easy it is to change things depends on how the political stars are aligned. Some parts of the constitution have proved exceptionally difficult to reform. If it were easy to alter the British constitution, the House of Lords as presently constituted would have disappeared a long time ago, but government after government has found that the politics of reform never seems to add up. Britain has no mechanism for removing ticklish constitutional questions from conventional party politics, just as it has no clear criteria for deciding when scheming for party political advantage becomes ‘unconstitutional’. Gordon Brown would probably not be in the mess he currently is if the timing of elections was excluded from routine political calculation. When Brown flirted with calling an election last autumn, in order to take advantage of a temporary lead in the polls over the Tories, a few brave opposition politicians, such as the Conservative Malcolm Rifkind, tried to make the case that what he was doing was unconstitutional. British Parliaments, Rifkind claimed, ought to be allowed to run a relatively full course unless the government has lost its ability to command a majority in the Commons. But Rifkind was whistling in the dark – Brown could do what he liked. A more naive-sounding, but altogether more accurate description of what was going on was provided by George Osborne on Question Time, who accused Brown of ‘playing politics with the political process’. That’s exactly what he was doing, which is why when he got the politics wrong the whole thing blew up in his face.
So the extensive alterations to Britain’s constitution in recent years tell us more about the state of British politics than about the underlying principles of constitutional government in this country. Constitutional reform in Britain follows the line of least political resistance, often with unintended consequences. For example, perhaps the most fundamental shift in constitutional arrangements over the past generation derives from British membership of the EU. Although there has always been significant political opposition to the EU, there has never been sufficient Parliamentary resistance to prevent governments that wish to sign up to the terms of membership from pressing ahead. However, in an attempt to neutralise what opposition there was, the Labour government felt obliged in 1975 to call the first (and so far only) national referendum in British political history to confirm the country’s continuing membership. The result was that the politicians got their way, but in doing so they changed the terms of the relationship between Parliament and the people, which had previously rested on an implicit mistrust of direct popular mandates for particular policy decisions. The promise of another referendum on Europe, or at least the threat of one, has now become part of the political landscape, something politicians must take into account when considering their options. Similarly, though most British politicians understood that EU membership would mean subjecting domestic institutions to the remit of various European bodies, few appear to have foreseen that it would also alter the relationship between the British government and the British judiciary. Yet as EU law came to be applied in British cases, so British judges have had new grounds on which to challenge the actions of governments and their officials (something the judges went out of their way to warn the politicians about, aware of the fundamental constitutional shift it presaged, but the politicians were too busy doing politics to listen). British politicians did not sign up to any of the terms of EU membership, from the European Communities Act of 1972 to the Human Rights Act of 1998, with the intention of altering the British constitution by enhancing the role of the people or the judiciary. Yet that is what they have achieved.
The same law of unintended consequences applies to the changing role of the civil service. The traditional job of civil servants in Britain’s constitutional order was to provide their political superiors with advice, support, sceptical warnings where necessary and the semblance of an institutional memory where possible. They did this under conditions of more or less complete public anonymity. The job of governments, meanwhile, was to get things done and to carry the can when they went wrong. The British constitution was always marked by a strong notion of political accountability, in that the price politicians in government paid for their considerable discretionary powers was direct exposure to the full weight of public disapproval whenever the public needed someone to blame. We could always kick the bastards out if we wanted to, and more important, we always knew who the bastards were – the government of the day. Recognising this, and accepting it, recent governments have questioned whether they are best served by civil servants who merely advise, when they could have civil servants who actually deliver. One of the biggest recent shifts in British politics has been the move, greatly accelerated under New Labour, from seeing civil servants as mandarins to seeing them as managers. If politicians are ultimately accountable to a restless and easily disgruntled electorate, they want civil servants who produce results, not ones who ask difficult questions. Yet the consequence is that it is much harder to know who is responsible for what. If delivery is what civil servants are for, then failure to deliver can be laid at their door too, and if necessary (particularly if necessary for a government minister’s survival), names can be named. Of course, many civil servants hate their newfound exposure to public scrutiny, but enough of them relish it, and thrive on it, to ensure that there are winners as well as losers. The secret, for civil servants as well as politicians, is to be a safe pair of hands without getting caught holding the ball – not so much power without responsibility, as delivery without fingerprints.
This dispersal of responsibility through the system, like the increasing role for judicial oversight, suggests that the prevailing trend in government is not all towards centralisation, as is sometimes imagined. Of course, some aspects of government are being relentlessly centralised. Local authorities have been divested of most of the powers they once had: to raise revenue, to decide what to spend it on, and to decide whether they were getting value for money. A series of central government innovations – from the Audit Commission (1982) to the Best Value Inspection Service (1999) – have made sure that it is someone else who decides whether local government is offering value for money. Meanwhile, the Local Government Act of 1999 empowered ministers to intervene in the affairs of local councils, and to stop them straying into areas of which ministers did not approve. As a result, local government now barely registers as an independent force in British politics (with the possible exception of the mayor of London), to the extent that, as King puts it, ‘local government is no longer, in any meaningful sense, a part of the British constitution.’ But in Westminster itself, not everything revolves around the man at the top. King is particularly good at puncturing the myth that what has happened in recent years reflects the ‘presidentialising’ of the office of prime minster. He distinguishes between three different aspects of the prime minister’s role: power, dominance and celebrity. All prime minsters have the same extensive, but by no means untrammelled powers. In addition, some prime ministers try to dominate their colleagues personally, by making sure that everything revolves around their particular whims and inclinations, and by stamping on rivals who may be getting above themselves. Margaret Thatcher was such a prime minister, but so too was Edward Heath, perhaps to an even greater extent (Heath’s cabinet was composed almost entirely of admirers and minions), which goes to show that dominance does not automatically translate into success. Tony Blair was not a dominant prime minister: how could he be, having ceded control over large areas of domestic policy to Gordon Brown before he even arrived at No. 10, and then lacking the nerve or political will to claw any of it back? What Blair was, instead, was a celebrity. Heath, too, was a celebrity of sorts, but of a queasy 1970s type, with his ocean-racing and orchestra-conducting, like some sort of parody of the sophisticated, Continental man of parts. His celebrity, like his dominant personality, did him few favours in the end. Blair, by contrast, revelled in his celebrity, which was closer to that of a TV star, and made him the centre of attention wherever he went. This sort of celebrity is a form of power, and it makes some things easier to achieve (for example, it has made it much easier for Blair to pay off his mortgage since leaving office), but it does not really alter the terms of the British constitution. Nor does it mean Blair could do as he pleased. In fact, it made some things harder to achieve, because his impulse to put himself in the spotlight meant that he had to spread himself pretty thin, and to follow the glare of public attention wherever it happened to take him.
All prime ministers have to decide what sort of prime minister they want to be. Brown is still to make up his mind. Does he want to dominate (which would not be hard since there is no one else of comparable stature in his cabinet)? Can he bear, as some of his advisers would clearly like, to turn himself into a celebrity? Or would he really be happiest pulling strings behind the scenes? He has said that one thing he wants to ensure is that Parliament is restored to some of its former significance, after the cavalier way it was treated by his predecessor. But this too is something of a misperception. Parliament as an independent body has never had much significance in the modern British constitutional order, certainly not since the party machines eradicated any real scope for independence among individual MPs towards the end of the 19th century. Throughout the 20th century, British politics revolved around the decision-making of the executive, and the job of the House of Commons was to sustain the government in power. But towards the end of the last century, backbench MPs on the government side began asserting themselves by their increasing willingness to vote against their own party on particular pieces of legislation. This process, which really got started under John Major, continued and in some ways accelerated under Blair. One of these backbench rebellions, on university top-up fees at the beginning of 2004, very nearly cost him his job. This new-found assertiveness means that at present the government probably has to spend more time consulting with and worrying about backbench opinion than at any point in the last hundred years.
Blair downgraded the status of the Westminster Parliament not by ignoring it, but by devolving some of its powers to Scotland and Wales (and, in due course, to Northern Ireland as well). Devolution is, for King, the recent constitutional change likeliest to have the most significant long-term consequences. But again, this is not because the architects of devolution intended those consequences; it is because they were not obliged to think through the full implications of what they were doing. Blair inherited Labour’s commitment to devolution from John Smith, and though he had little principled attachment to it, he clearly saw its political advantages. In particular, he saw devolution as a way of cementing a centre-left alliance of Labour and the Liberal Democrats (and at a stretch the nationalists as well) in Scotland and Wales, to the permanent exclusion of the Tories, without interfering with Labour’s one-party hold on the central powers of the British state. That he got away with it is evidence of the extraordinary weakness of the political opposition he faced during his early years in Downing Street. He was able, with the aid of a couple of referendums, to rubber-stamp the whole project with the veneer of the people’s will, to give Scotland its own parliament, Wales its own assembly, both countries their own system of proportional representation, and in each a new political culture, organised around the principles of accommodation, consensus, and the presumed irrelevance of anti-progressive opinion. At the same time, no real effort was made to readjust the levels of either Scottish or Welsh representation at Westminster, on which the Labour Party increasingly depends, or to renegotiate the formula by which Scotland receives substantial financial benefits from Westminster, beyond anything enjoyed by the other parts of the Union. As King remarks, ‘one of the most striking features of the early years of the post-1997 devolution arrangements was the lack of public controversy over financial matters.’ But this too was a sign of just how nicely the political stars lined up for Blair: not only did he have little to fear from either the Tories or the SNP (certainly far less than Brown does now), but he also presided over an economy that, thanks to forces well beyond his control, was growing at a sufficient rate to paper over any cracks in the unequal distribution of public funds to its different territorial components.
The present devolution arrangements make sense only so long as the political benefits for the governing party are still in place, which may not be for much longer. In the meantime, the different parts of the United Kingdom are starting to become foreign to one another, at least so far as their politics are concerned. Very few people in England know, or care, what exercises voters in Scotland or Wales, let alone which particular issues currently occupy their respective elected assemblies. In theory it’s easy to discover what’s going on elsewhere, because the information is readily available; in practice, of course, no one has any motivation to find out. ‘On some mornings,’ King writes, ‘apart from their international coverage, the Today programme on Radio 4 and Good Morning Scotland on BBC Radio Scotland could be reporting from different planets, because in a sense they are.’ Anyone in England can tune into Good Morning Scotland any time they like, with just a click of a button on the BBC website or by flicking through a few channels on their cable remote, but frankly, why would anyone bother? Information technology, as well as bringing people together, is driving them further apart. So whatever honeyed words might be spoken about devolution effecting a shift from yah-boo, winner-takes-all politics at Westminster to something more accommodating and consensual stemming from the Celtic fringes, the fact is there is no consensus between the different political systems that the British constitution now contains. Moreover, when English politicians eventually reach their own consensus on what to do about the inequities of devolution, it seems likely to bring the different bits of the Union into direct confrontation.
The stars that lined up to clear the way for New Labour’s constitutional tinkering are now moving quite rapidly apart. In fact, it is not hard to imagine the result of the next general election producing its own perfect little constitutional storm. Say the national result is something like this: Tories 38 per cent, Labour 36 per cent, Lib Dems 18 per cent, with Labour and the SNP neck and neck in Scotland. This would produce a hung Parliament, with Labour probably having more seats despite having lost the popular vote (and in England the Tories are sure to have won the popular vote by an even larger margin than the national result; they managed to win more votes than Labour in England even when decisively losing the 2005 election). If the election is close, especially given the various haphazard experiments with postal and other kinds of voting that the government has introduced in recent years, there are almost certain to be legal challenges to some of the results, which would test the willingness of the courts to use their oversight to interfere in the political process (this is, after all, a voting system that was described by a judge only a couple of years ago as one that would ‘disgrace a banana republic’). The queen, meanwhile, whatever the courts decide, would have to invite either Brown or David Cameron to form a government, which would in turn depend on what concessions Nick Clegg could extract from either of them for the Lib Dems, and on how much confidence either could place in the continued support of their backbench MPs (likely to be more of a problem for Brown than Cameron). What the sovereign should do – or be advised to do – in these circumstances is emphatically not a part of the British constitution that is written down.
The negotiations are likely to be complicated by the attitude of the major parties to Scotland. The Tories are bound to point out the inequity of a Scottish Labour leader being propped up by Scottish Labour MPs, despite having failed to win the popular vote in Scotland, where the population is already over-represented at Westminster, never mind having been trounced in the popular vote in England. If the result is that Brown cannot form a government, and Cameron becomes PM, he is likely to want to use his powers to make sure the situation does not arise again, either by renegotiating the terms of Scottish representation in the House of Commons, or by pulling the plug on Scottish subsidies, or even by allowing the Scots to go their own way altogether, perhaps after a new election in which he offers the people of England the prospect of Scottish independence. This seemingly far-fetched succession of events, in which the party of union morphs into what King calls ‘the party of disunion’, is not impossible, and would fit the pattern of what Iain McLean, a political scientist (and friend of Gordon Brown), has christened the ‘Slovak scenario’. Slovakia achieved independence from the Czech Republic not at the point when Slovak independence leaders finally persuaded their own population to make a break for freedom, but at the point when Czech politicians had finally had enough, and to the surprise of many Slovaks, cut their ties with their ungrateful and permanently dissatisfied neighbours. What price then Blair’s dream of the permanent exclusion of the Tories from government? It is more likely to be the Labour Party that finds itself out of power, perhaps both north and south of the border, for a generation.
Before we reach this point, or any of the other unplanned scenarios that could emerge out of the chaos, it might be a good moment to consider the codification of the British constitution. King considers, and dismisses, the case for establishing a constitutional convention to try to introduce some coherence into an increasingly incoherent system. This is not because he believes that the problems will iron themselves out in the long run, but because he doesn’t think the politics would work. Until things start to go seriously wrong, a convention would seem to most people like a waste of time – just another talking shop, when the politicians ought to have more important things to worry about. And that, of course, is the problem. When things do go wrong and the politicians start to get seriously worried – when, for example, a contraction of the economy produces an English nationalist reaction against the featherbedding of the Scots – it will be too late: at that point the politics will be too raw for the considered detachment that a constitutional convention needs. In truth, the politics of constitutional conventions are nightmarishly difficult to get right. If the public can see what is at stake, and has a chance to vote in delegates to defend their sectional interests, as in Germany in 1919 or Iraq in 2005, you get bad constitutions. On the other hand, if the public doesn’t take any particular interest, and lets the lawyers and politicians get on with it, as at the European convention in Brussels of 2002-3, then you also get bad constitutions. What one wants, as at Philadelphia in 1787, is for an engaged and passionately committed public to be represented by delegates who cut themselves off from the public during their proceedings. And that is simply not going to happen in the world of the Today programme and Good Morning Scotland.
So what will happen? At the end of his book, King offers this beautifully modulated image:
The old constitution possessed a certain monumental grandeur, a certain cruciform, cathedral-like simplicity. Its architecture and ground plan could easily be grasped, at least in their essentials. But that old building now looks as though it has been bombed from above and undermined from below. Parts of the roof have fallen in, at least one of the transepts has collapsed, and workmen have erected an untidy assortment of workshops and sheds inside the few walls still standing. Britain today has neither a brand new church, a postwar Coventry cathedral, nor a skilful restoration of an old church, like the Frauenkirche, Dresden, but something that looks a little bit like a bombed-out ruin left over from a major war.
The implication is that it may be a mess, but it’s not going to fall down, not for a long while yet. But the other risk is that, like a neglected cathedral, no matter how many garish posters the clergy put up to try to make what happens there relevant to their dwindling congregation, advertising the mother-and-toddler groups and all the good works being done for those less fortunate than ourselves, the people will stop coming, leaving only tourists and sightseers. And at that point, even if the old building is still standing, we will have to find somewhere else to go.