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July 11, 2006

Constitutions are not enough to restrict the powers of the executive, a strong constitutional consciousness is also required - argues Michael Bentley

Posted by Michael Bentley

No new constitutional settlement will restrict the powers of an overmighty executive unless it is grounded in a popular revival of constitutional consciousness, in which an awareness of Britain's constitutional history once again becomes a major ingredient in the nation's sense of itself. This is the argument of conservative historian Michael Bentley - Professor of Modern History at the University of St Andrews.

People don't read constitutional history any more. Quite why that should be so raises deep cultural matters and comments on a decline or at least a major shift in historical education. But, whatever the reason, the result is that students, and therefore teachers, and therefore more students, know very little about those "milestones" of constitutional "advance" that once would have reached them at school Magna Carta, the Model Parliament, the Bill of Rights, the Reform Acts of the nineteenth century. In the late modern period, indeed, darkness deepens so that Stockdale versus Hansard is nowadays more likely to be imagined as a boxing match than a constitutional crux.

To the extent that modern memory reserves a place for constitutional authors, Walter Bagehot is seen as the final word and his study of the The English Constitution (1867) as a classic - weakened only by its appearance in the same year as the Second Reform Act which rendered it immediately out of date. This criticism is true but trivial. A more powerful reason for raising doubts over Bagehot is that he wrote as a liberal, crypto-Darwinist progressive: a very bad thing to be. The consequences of elevating this facile journalist onto a pedestal reserved for a modern Cicero have proved significant for modern understanding; and perhaps the most significant - because most persistent - of them attaches to ways in which Bagehot's account of the constitution is deemed the only one available to the nineteenth century, thinkable in the twentieth and recoverable in the twenty-first.

I spent some time - in a book about the presuppositions of Lord Salisbury's world at the end of the nineteenth century - trying to conceive alternative visions of the constitution that may have been at the disposal of nineteenth-century statesmen and intellectuals in order to extrapolate some more general model of constitutional theory. It was clear that many thinkers assumed that some of the characteristics deemed archaic by Bagehot still had a life of their own: the power and authority of the monarchy under Queen Victoria, the all-encompassing reverence reserved for legal contract, the role of aristocracy (as opposed to plutocracy) in maintaining social continuity and order, the near-sacred trust associated with the ownership of land. So at least two thought-worlds existed alongside one another in a sort of parallel universe.

Something similar may be happening now in the wake of several governments' attempts to "modernize" the constitution. We have seen concerted and strategic attacks on principles once held to be inviolable: the supremacy of Parliament, the independence of the civil service, the protection of the judiciary from executive interference, encroachments on individual liberty under the flag of anti-terrorist necessity. And in the face of these challenges the most vaunted strength of British constitutional arrangements that they are not written down has proved their weakness. Ignorance of those arrangements and their evolution over three centuries, plus the flank attack that delivers death by Statutory Instrument (of which more presently), has produced a cheerful sense that all is well or a weary so-what? if it isn't.

One way of taking that discussion forward appears in a recent pamphlet by the distinguished international lawyer Martin Howe QC [Martin Howe, ABC: a balanced constitution for the twenty-first century (Politeia, 2006)]. He expresses many worries about "back of an envelope" thinking the plan to abolish the office of Lord Chancellor, for example, or to institute a Supreme Court thinking that threatens damage not only through the unwisdom of proposals arising this way but also through the reverberations and indirect consequences that can inadvertently ensue in an organic and complicated polity.

Devolution has superimposed a layer of difficulty on top of the one that already existed in the stipulations of a post-Maastricht EU: the farcical predicaments provided by the "West Lothian" problem would not be accepted for a moment in a state that took seriously its own institutional history and constitutional integrity.

Howe argues that only a wide-angled revision of the relationship between parliament(s), the executive and judiciary is likely to provide a firm foothold for any government wedded to constitutional resurgence. He wants to see a new Parliamentary Procedures Committee staffed jointly by both Houses to ensure that legislation can only come into existence after adequate scrutiny. Otherwise the vastly-expanded use of Statutory Instruments, an executive device that produces provisions which can (theoretically) be rejected by parliament but not amended, will continue, together with maximal use of the guillotine, another executive advantage in driving through legislation.

Howe wants a new Parliament Act to replace those of 1911 and 1949, one that would incorporate a revised second chamber and widen the category of bills over which it could exercise a veto. Not least, therefore, he seeks to safeguard the constitution from the depredations of a future transient majority in the Commons that might push through measures that make fundamental alterations to constitutional practice. This second chamber would have a new Legislation Committee to make scrutiny of bills more rigorous.

By coupling that recommendation with a new Civil Service Act that would re-emphasize the separation of the bureaucracy from government, Howe hopes to put the executive back in its box and re-establish some form of public control over what governments do.

Turning to Europe, where Howe has particular knowledge, he urges the strengthening of parliamentary control of Britain's relationship with the EU which at the moment is a matter of executive initiative. Most especially, he sees the need to go beyond an unwritten constitution and embody fundamental liberties in a new Bill of Rights. How asks:

Can we not protect our liberties better than through the European Human Rights Convention and its multinational constitution?
Much in these proposals will attract people of a moderate disposition who share Howe's conviction that the constitution has indeed become "unbalanced" through its undertow towards maximizing executive autonomy. Nor will many of them bridle at his instinct that "convention" will no longer work as a restraint on executives because we live in:
a climate where such relics of the past are regarded with contempt rather than respect.
But of course that is the difficulty facing all constitutional reform and it is one that Howe cannot effectively meet. We have to think not only about what kind of constitution moderate opinion wishes to construct but how it is considered plausible to bring one into effect in a culture that has lost respect for any form of constitutional stipulation as a mode of executive control.

The Political Quarterly has noticed and regretted a lack in Britain of "engagement to the civic". Quite so; but if constitutional strategy turns on energizing that engagement then it faces an awesome mountain of ignorance and apathy about constitutional issues in whose shadow the problem arose in the first place. Indeed the difficulty goes beyond ignorance and apathy: it rests on a profound, and comparatively recent, resistance to the idea of law's importance as a social determinant. You cannot build an effective constitution as a sort of scaffolding creeping up the exterior wall of a society; it has to enjoy a vital relationship with what it seeks to preserve and protect. That form of relationship implies some kind of historical awareness that is currently lacking and a markedly higher level of political expectation than seems evident at present.

Weimar had a constitution. It was overridden by an executive determined to override it. The British have been spared an Enabling Act so far but only because no known government has yet thought it could get away with one in the current climate of political suspicion of all politicians' motives. That reticence could change in the face of terrorist outrage and, if it does, then it will need more than constitutional nicety to resist incursions on parliamentary government.

Many years ago I asked an English peer what forms resistance would take if the executive became overmighty. "Procedure", he said. That seems to me as much a day-dream now as it did then. Constitutional law will become powerful again only when constitutional consciousness has revived; and that will not happen until we have a strategy for civil education that reassigns constitutional history a central position in the historical curriculum and becomes a major ingredient in the nation's sense of itself. As I hope to show in a separate article, however, that objective cannot be met realistically or desirably by trying to make kids read Stubbs and reinventing the whig interpetation of history as a collection of manifest truths.

Michael Bentley is Professor of Modern History at the University of St Andrews and the author of Lord Salisbury's World: Conservative Environments in Late Victorian Britain (Cambridge University Press, 2001).

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