Anthony King’s British Constitution redux

No Politics department or school library should be without a copy of Anthony King’s “The British Constitution”. In support of this assertion read David Runciman in the London Review of Books

Runciman’s review can be found here.

Professor King gave a lecture at the LSE to coincide with the launch of his book, and the blog reported on this in an earlier posting. I have included it again below.

Professor Anthony King of the University of Essex gave an entertaining lecture on the British Constitution last night to a packed hall at the London School of Economics.

King asked us first to consider that the date was October 1957, not October 2007, and imagine that a visiting professor were to give a talk on the old constitution. He suggested that the room would be very empty indeed!

The old constitution operated on the basis of two rival parties competing for the opportunity to form the largest grouping in the House of Commons and thus the government. With a fair degree of input from the administrative arm of the executive, the civil service, that was more or less it. The judiciary and the House of Lords operated on the periphery. The former was very much a creature of the executive, and the latter had since 1911 counted for nothing. This governing apparatus was simple, but also much admired.

The constitution’s overriding purpose was to allow the government to govern. (I should note here for the benefit of students, a point King did not stress, was that this view shared by the top echelons of both of Britain’s main political parties at the time. It may come as a surprise to learn that Labour politicians - for all the radical rhetoric from thinkers within the party like Harold Laski - whilst in office, were extremely comfortable with how smooth the machinery of government worked.) King said that there were very few autonomous sources of power. There were no referendums, local government was limited in its power, other sub-national structures did not exist, there was no Bill of Rights, and as stated above the judges and Lords were incidental. The electorate went to the polls every four or five years and then largely withdrew.

What was the purpose and value of the old constitution?
• It certainly did not seek to promote accommodation, i.e. seek to bind together different interests as in other countries.
• Nor was its goal one of deliberation, where time would be taken to solve problems. Further it did not seek to encourage citizen participation; no real attempt was made to promote John Stuart Mill’s ideas about the good citizen.
• Responsiveness was not a central feature. The needs of the people were more or less ignored.
• What the old constitution did embody was the principle of accountability. Government governed and were judged by the electorate at election time. If it was felt that they had done a bad job, or that the opposition could perhaps do a better job, then the people could throw the rascals out.

Why has the constitution changed so much?
King said he could think of no other country where the scale of the changes seen in the UK had taken place other than in times of crisis. Britain has revolutionised its constitution without a revolution. There has been no war, civil strife, etc. The roots of the changes can be traced back to the 1960s and what Samuel H. Beer called the ‘romantic revolt’. Up until that time there had been a great deal of deference, but then the wheels began to come off. The governmental system had ceased to deliver the goods. The Empire had collapsed, Britain was performing poorly in relation to its main economic competitors across the Channel, there was serious industrial unrest, and the beginning of the Troubles in Northern Ireland.

Instability within the political system became evident. In the 1970s there were 4 elections, far above the post war average. Two of the governments operated minority administrations. The SNP gained electoral success. Then in the 1980s adversarial politics replaced consensus as the Tories veered to the right and Labour lurched to the left. This, of course, left space for the birth of the SDP.

What has changed?
King gave a caveat emptor that there was insufficient time to into great detail in 40 minutes on the massive changes that had taken place, and provided a neat ten point summary.
1. EU membership has ushered in a massive transfer of power.
2. The judiciary has been affected in that it then had to consider EU law in a UK context.
3. Judicial activism had grown to a level unknown in the 1950s.
4. The Human Rights Act had extended judicial scope.
5. Devolution had occurred. King said there was no known other example of the transfer of power as Blair had engineered in the late 1990s.
6. The civil service was no longer a partner of ministers. The ‘Yes Minister’ era of Sir Humphrey being a major player was a thing of the past.
7. Proliferation of elections. There are now nearly 1000 elected office holders above local government level. This has been coupled with an explosion of election systems. If electoral systems was an Olympic event then the UK would win a gold medal.
8. Referendums. Even those that have not been held have had a significant impact. King contends that if Major, and then Blair had not promised to hold a referendum on euro entry then we would be part of Euroland.
9. Freedom of Information.
10. House of Lords reform. Recent changes had shifted the second chamber nearer to the centre of power in the UK political system.

What has been the impact of these changes?
The law of unintended consequences. Changes that were intended as constitutional changes have had other impacts. For example, how devolution has led to the operation of a host of different electoral systems. Second, changes that were not intended as constitutional changes have had enormous effect on the machinery of government. For instance, joining the EU was considered in the late sixties (as the Common Market) and early seventies (as the European Community) solely in terms of the economic arguments.

Referendums have now become an accepted part of the constitutional apparatus yet no one sat down and consciously worked this out. In the 1970s the referendum was employed as a purely political device.

The system is incoherent. It is very hard to make sense of the new constitution and how all the different parts fit together. There were no Founding Fathers as in the Constitutional Convention in Philadelphia of 1787. King said the “British constitution is a complete mess”.

We have shifted from having a power concentration constitution to a power sharing/diffusion constitution. The fragmentation is evident in the power held by the EU, the devolved institutions, the Royal Courts of Justice, etc.

Accountability is no longer central to our system. Is it still possible to throw the rascals out? Probably. But would they actually be the rascals responsible?

What of the future?
Professor King argued that it would be a good idea to let things bed down. Unlike the ideas exhibited by the various party leaders, all of whom seem committed to further constitutional tinkering of one sort or another, King said that continued debate is not necessary. Indeed it is divisive. When parties can’t even decide on how they are financed, what chances are there of arriving at a constitutional consensus? In addition there was no real public demand, and other priorities should take precedence.

On the need for codification, there would be as much chance of getting it wrong as getting it right. And it is no panacea. People are overly concerned about what goes in and forget that many countries that have codified constitutions leave a great deal out. As an example of the first point he mentioned the Icelandic constitution which contains the provision that “The President of the Republic shall reside in or near Reykjavik.” (I checked this out. See Article 12: http://www.government.is/constitution/ )
And on King’s second point he said that he could not think of any country that had a constitution which detailed how its elections would operate, e.g. the US could have a run off between the top two candidates for President if it so wished.

Will King get his wish? Professor Patrick Dunleavy, who chaired the event, asked him to indulge in some future gazing. Professor King said that further change was on the immediate horizon: change to the powers and composition of the Lords; attempts to tackle the West Lothian Question and concerns about funding of the devolved assemblies. On the Lords King said that he doubted whether further change was necessarily a good idea. Do we need an extra 200 or so elected officials? And who would they be? On devolution he proposed a short term solution would be to reduce further the number of MPs to Westminster from the devolved regions so that it would reduce the mathematical probability of MPs from outside England carrying votes in the Commons on England only bills. And nowhere in the world was there such a disjunction between the power to raise revenue and the power to spend as evident as Scotland and Wales.

Further reading
Professor King’s lecture was timed to coincide with the launch of his new book, The British Constitution. The blurb describes it as a ‘Bagehot for the twenty first century’. At over 400 pages is quite a bit longer than Bagehot’s English Constitution, but essential for any school library or Politics department. Link to Amazon