Vol. 25 No. 5 (May 2015) pp. 74-76THE BRITISH CONSTITUTION: CONTINUITY AND CHANGE: A FESTSCHRIFT FOR VERNON BOGDANOR by Matt Qvortrup (ed.). Portland: Hart Publishing Ltd. 2013. 212pp. Hardbound $80.00 ISBN: 9781849463713.
Reviewed by Kim Clarke, Bennett Jones Law Library, University of Calgary. Email: kim.clarke@ucalgary.ca.
If anyone deserves to be honored with a festschrift on the British Constitution, it is Vernon Bogdanor. Bogdanor is arguably the most-notable British constitutional scholar of our time, having written extensively over the past four decades on British politics, and democratic and constitutional issues. As Emeritus Professor of Politics and Government at the University of Oxford, he has also influenced British politics by teaching many well-known politicians and political observers, including Prime Minister David Cameron. Bogdanor has not restricted his attention to academia and politicians, but shares his views with his fellow British citizens through many television, radio and newspaper contributions. Bogdanor’s influence has not been limited to the United Kingdom either; scholars in many foreign countries around the world have cited his works.
Bogdanor and his writings, however, are mostly absent from this volume created in his honor. While most of the authors acknowledge his contributions to the constitutional discourse in their introduction and perhaps reference one or two of his publications, his works are only substantially discussed in three chapters. He was not even mentioned in two of the chapters.
This festschrift is comprised of 11 fairly short chapters. Although a different author(s) writes every entry, the arrangement of the chapters facilitates a development of constitutional concepts. The first three chapters “present three perspectives on the overall development of the Constitution from historical and political viewpoints” (p. 1). These foundational entries are followed by seven chapters focusing on different aspects of the Constitution, including the role of the courts, constitutional conventions, devolution of the Constitution and the doctrine of parliamentary sovereignty, and the role of the monarchy. Selecting historians and political science and legal scholars to participate in the festschrift is also appropriate as Bogdanor includes all those perspectives in his own writings.
The only discordant note in this otherwise fairly harmonious composition is the last chapter, “Constitutional Justice and Constitutional Politics in France” by Denis Baranger. This chapter was meant to provide a “sense of perspective” to those who focus on the British Constitution by allowing them to contrast it with “another model” (p. 2). However, while the chapter itself is well-written and provides an excellent introduction to the functionality of France’s Conseil constitutionnel (the Constitutional Council), its narrow focus does not allow for the true comparison that the editor promised in the book’s Foreword. A comparative constitutional chapter might have been a better selection.[*74]
In Chapter 1, David Butler outlines how the constitutional context has changed over the past six decades. He begins by breaking Marshall’s description of the British constitutional system into 11 elements and examines how each element has been impacted by parliamentary and legislative changes. To assist non-experts, Butler identifies 20 statutes enacted in the past 55 years and a wide range of social indicators that have changed the British constitution. He concludes by describing how the social changes are impacting the 11 constitutional elements. Readers coming from countries with written constitutions with defined amendment processes and rules will be struck by how Britain’s constitution can be affected by the social context.
Mike Finn and Anthony Seldon continue the general exploration of constitutional amendments in Chapter 2, honing in on the changes that occurred under the Labour Governments of 1997-2010. They focus on the reforms led by the Blair government, including fixed-term parliaments, creation of the Supreme Court, devolution, and the implementation of human rights. Their view of the impact of these reforms, however, is that they are significant due to the quantity, not quality, of the constitutional amendments implemented in this short time period. They criticize the government’s lack of a “grand plan” and their focus on the short- or medium-term benefits of the reforms while ignoring foreseeable long-term consequences.
Peter Riddell’s chapter, “The Constitution and the Public – How Voters Forgot the Constitution,” turns the attention from parliamentary debates regarding the constitution to the public’s discourse (or lack thereof). Riddell disagrees with the traditional notion that the public overlooks the constitution because it isn’t written; he argues that the problem lies with the piecemeal approach to constitutional reform undertaken by politicians. He echoes Finn and Seldon’s lament about Labour’s lack of overall strategy to constitutional reforms, and claims that this doesn’t allow the public to see the constitution as a whole and they become disconnected.
The Blair government’s reforms are also the subject of Matt Qvortrup’s Chapter 4, wherein he argues that the reforms have fundamentally changed the constitution into something ‘foreign’ – a legal constitution. After briefly discussing the traditional and political constitutions, he analyzes the legislation that have strengthened the courts role in the constitutional process. He demonstrates how the Constitutional Reform Act 2005 amended the roles of the Lord Chancellor to eliminate his involvement in the political realm so as to stop any potential conflict of interest and increasing the independence of the judiciary by removing the Parliament’s involvement in the appointment of judges. He then scrutinizes how the courts have used sections 3(1) and 4(2) of the Human Rights Act to declare when legislation is incompatible.
Dawn Oliver opens Chapter 5 by stating “[t]he UK Constitution is still predominantly ‘political’” (p. 69) but then describes how other entities, including arm’s length bodies and tribunals, are now assuming duties and responsibilities that previously fell under government’s domain. Like Qvortrup, she scrutinizes the expanded constitutional role of the courts and calls bringing non-traditional constitutional players into the [*75] mix part of a “maturing political culture” (p. 91).
Constitutional conventions are the focus of the next two chapters. In Chapter 6, David Feldman leads readers through an exploration of some basic questions regarding constitutional conventions, namely what makes them constitutional, how they arise, how we can determine if conventions exist, and the distinctions between constitutional conventions and constitutional laws. This exploration leads Feldman to suggest a new multi-faceted definition of constitutional conventions. Joseph Jaconelli’s Chapter 7 demonstrates a strong connection to the sub-title’s themes of continuity and change. He introduces the chapter with the assertion “[n]o part of the Constitution of the United Kingdom illuminates that related themes of the present volume, continuity and change, as vividly as constitutional conventions” (p. 122). Jaconelli then explores these concepts at three different stages of the life of conventions: when “instantaneously created conventions” come into existence, as constitutional conventions evolve due to changing conditions, and when they cease to exist.
Devolution, specifically as it relates to the Scottish independence movement, is the subject of Chapter 8. Stephen Tierney describes the devolutionary actions over the past four decades that led up to the passage of the Scotland Act 1998 and the Scotland Act 2012. He briefly discusses the legislative actions leading to the 2014 referendum and concludes by hypothesizing that a ‘No’ victory will not result in the end to the desire for devolution but “rather the beginning of a new chapter in constitutional realignment of the British unions” (p. 152). Given Bogdanor’s support of devolution, it is not surprising Tierney references Bogdanor throughout this chapter.
In Chapter 9, Richard Gordon debates whether constitutional change is possible with a parliamentary sovereignty – calling it an “impossible dialectic.” He determines that principled constitutional change is not possible under a parliamentary sovereignty or through the courts – concluding that a formal concordant between the legislative and judicial branches setting out the constitutional mechanisms of change is needed in order to effect real constitutional change.
The British Monarchy is the subject of Robert Blackburn’s contribution, in Chapter 10. Blackburn explores how the role of the monarchy has evolved under Queen Elizabeth II, during her 60-year rule. He discusses a few basic principles regarding the monarchy, specifically her interaction with and willingness to make public comments about the party in power. He then highlights recent legislation that will impact the Monarchy, including replacing the prerogative of dissolution with fixed-term parliaments, codifying treaty making, and changing the succession rules.
Several themes, other than continuity and change, emerge from this collection of essays, tying them together and reinforcing the concepts. The first is that the major constitutional changes that have occurred in the past two decades happened in a piecemeal manner, without any overarching or ‘grand’ plan. The second theme relates to the re-balancing of the checks and balances [*76] in the constitutional process between the legislative and judicial branches with the rise in the judiciary’s involvement.
Matt Qvortrup, in his editorial role, does an excellent job of arranging the chapters to assist novice constitutional scholars or non-British readers – beginning with more general chapters and then concluding with narrower “case studies” as he calls them. The case studies chosen, namely the Scottish referendum and the role of the monarchy in the governing of the country, are uniquely British and allow readers to gain an understanding of that uniqueness.
While not specifically identified as an introductory text, this book, in fact, provides an excellent introduction to how the British constitutional system has developed over the past few decades. The authors have not assumed that their readers have any previous knowledge of the topic. They explain the constitutional concepts and then walk the reader through those concepts’ application to allow the readers to understand the current constitutional environment, which is particularly useful for non-British readers. This book would be a great addition to any university or academic law library and should be recommended to novice constitutional scholars who want to understand how the United Kingdom’s unwritten constitutional system operates – or doesn’t, as the case may be.
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© Copyright 2015 by the author, Kim Clarke.
