Book reviews

Vernon Bogdanor, ed., The British Constitution in the Twentieth Century. The
British Academy Centenary Monographs. Oxford and New York: Oxford
University Press, 2003. Pp. xvi
795 pp.
Reviewed by Charles Fried*

To many the term British Constitution has always seemed a solecism, rather
like substantive due process. This very considerable collection of essays, taken
as a whole, offers the perplexed outsider a comprehensive if not altogether
comprehensible storythrough no fault of the authorsof the combined
workings of the major British institutions, practices and postures that make up
the governance of the United Kingdom. I use the word governance to distin-
guish it from the term government, which in British parlance means something
like the prime minister, his cabinet and perhaps his parliamentary majority.
And I say that what is offered here is a story rather than an account, because
these essays make clear that this Constitution did not just evolve from a series
of historical strugglesas all constitutions havebut that these struggles, in
some sense, are the text of the British Constitution. Some of the principal
issues of any modern regimewho is the head of state and what are his pow-
ers, what bodies have authority to make law, how are the persons who inhabit
these roles chosen, who adjudicates disputes between various claimants to
governmental powerare not, as in nations with real constitutions, set out
in a single comprehensive text (whether or not definitively interpreted by some
supreme or constitutional court). Rather, these issues and their resolutions
emerge from sometimes slow, sometimes abrupt, dramatic encounters later to
be embodied (or not) in acts of Parliament. When such enactments occur, the
logical mysterywhich is to say, the absence of neat, Kelsenian constitutional
logicis manifest, because the constitutional situation of Parliament itself is
nowhere set out in a definitive constitutional text but only and at best in acts
of Parliament themselves.
Consider such fundamental questions as the role of the king or queen
(a governmental role customarily referred to in British constitutional discourse
by the thoroughly inappropriate term, the Sovereign) in the choice of executive

* Beneficial Professor of Law, Harvard University

Oxford University Press and New York University School of Law 2004, 723
ICON, Volume 2, Number 4, 2004, pp. 723741
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officers, the relation between the two houses of Parliament, the relation of the
prime minister to his cabinet, or the relation of treaties to ordinary law, and to
the power of making them. Although, at any given time, there may exist more
or less clear answers to many of these questions, the authors of the essays in
this volumein the manner of those who discuss historical answers
approach the issues by telling stories. Roy Jenkinss splendid biography of
Gladstone,1 for instance, is full of stories about how Gladstone had to adjust his
choice of ministers to the convictions and prejudices of Queen Victoria; how
Irish church disestablishment and home rule were questions on which her
views had an important influence; about struggles with the House of Lords
and how they eventually doomed Gladstones project for Irish home rule, even
though it had been approved by a majority of the Commons.
In this volume these questions persist, and they are answered not by refer-
ence to an authoritative textor an authoritative interpretation of an author-
itative textbut by accounts of evolving customs that sometimes (as in the
Parliament Act of 1911, drastically limiting the role of the House of Lords)
result in a definitive act by the very body whose constitutionthat word
again!was the subject of the dispute. And that denouement was itself pre-
ceded by a threat by the government to have the king create enough peers to
pass Lloyd Georges Peoples Budget, which the Lords had rejected, a threat
with which King Edward VII would not cooperate unless the government first
went to the people and prevailed in a general election. (Sometimes British
parlance refers to these customs as conventions, suggesting that they are bind-
ing though nowhere embodied in an authoritative text. But it appears that the
House of Lords rejection of the Peoples Budget may have violated just such
a convention. In Robert Nozicks phrase, in another context, such unwritten
laws are sometimes not worth the paper they are not written on.)
It is striking how the expositions of constitutional topics in this volume
the monarchy, the cabinet system, the two houses of Parliamentministerial
responsibility are, in fact, accounts of political struggles, stories, and, more
striking still, often the same stories told over and over again. Thus the closest
thing to an agreed-upon constitutional principle is parliamentary sover-
eigntyor, as Henry Herbert put it in a less complicated time, the principle
that Parliament can do anything except make a man a woman. The principle
was authoritatively articulated by A.V. Dicey. His seminal work on the British
constitution may be seen as the nearest thing to a binding constitutional text
Britain has ever had, 2 judging by the ubiquitous citation to it in the constitu-
tional literature, to which this book is no exception. Unfortunately, Parliament
means the queen in Parliament, which is composed of two houses, and the
interaction between these three entities is, of course, the largest part of the

1
See ROY JENKINS GLADSTONE: A BIOGRAPHY (Random House 1997).
2
See ALBERT VAN DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION (Gaunt 2000).
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story. I say the largest part, because this principle makes no mention of the
prime minister, the cabinet, political parties or the judiciary. It might also be
said that the one essential principle is that Britain is a democracy, and that
the true evolution has been toward making its government more accountable
to the people. But the people do not figure in the phrase, Parliamentary
sovereignty and have been brought into things only by acts of Parliament,
which, during the last 150 years or so, have expanded the suffrage from a
minuscule portion of the population to something that can be more nearly
considered universal. So if the people, as a whole, are the real constitutional
sovereign, it is kings and queens in Parliament who have made them so. The
people come into the story with a vengeance in the two referenda submitted
pursuant to an act of Parliament3to the Scots and Welsh electorates in
1997. These then became the bases for the Scotland and Wales acts of 1998,4
establishing legislatures in those two regions and defining their powers. But
here again, Brigid Hadfields fascinating essay tells us a great deal more of the
story of how these and the more dramatic changes in relation to Ireland
(Northern and Eire) came about and rather less regarding the constitutional
details of the relations between these entitieswhat to American (and maybe
German) constitutionalists is the very meat of constitutional law.
Ian Lovelands essay on Britain and Europe sets out the features of the
Factortame No. 2 decision of the Judicial Committee of the House of Lords
in sufficient detail that we are able to follow his demonstration that the incorp-
oration of European Union law into British law has introduced further
incoherence into the story of parliamentary sovereignty. His conclusion is that
Factortame is probably more what we American constitutionalists call a clear-
statement rule than it is an affirmation of the constitutional irrevocabilityor
entrenchmentof parliamentary accession to European norms or of other
structural provisions, such as those involved in the acts of devolution to Scots
and Welsh legislatures. (A similar point can be made about the status of the
European Convention on Human Rights in U.K. law.) All in all, these accounts
leave the foreign reader with the impression that Britain has had a constitu-
tional history, but no Constitution.
Unfortunately, this episodic style entailsand this applies not just to the
authors but to the subject itselfmany terms and concepts that appear, some-
times in capital letters, without explanation or even a parenthetical phrase to
give one not versed in the subject some slight idea of what the author is talk-
ing about. The same point may be made about the more technical legal
accounts, in which leading cases are named or referenced, as if all readers
knew what these cases were about and what they held. This is particularly
disconcerting in the three analytical, closely reasoned, and compelling essays
by Robert Stevens, on Government and the Judiciary, Jeffrey Jowell, on

3
See Referendums (Scotland and Wales) Act, 1997.
4
See Scotland Act, 1998; Government of Wales Act, 1998.
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Administrative Law, and David Feldman, on Civil Liberties, but only because
they are in other respects so satisfying. Striking in all of these accounts is
the extent to which the historical story is the story: the woodenwhat some
American legal theorists call formalisticadherence of judges to the doctrine
of parliamentary sovereignty, matched by the hostility of Liberal and Labour
politicians to any role for the judiciary, a hostility they saw as amply justified
by the reluctance of the far more conservative judges to accept the socialistic
taxation and administrative programs of the postWorld War II Labour
governments. Then, as the governments became more conservative and the
judiciary more liberal (in intellectual orientation if not party affiliation), some
of the more adventurous pronouncements of the earlier period expanded and
flourished to restrain what were seen as the more draconian aspects of
Margaret Thatchers programs. The final impetus has been the striking activ-
ity of the European Court of Human Rights. In addition, the attitude of the
Blair government toward civil liberties, in particular, and toward judicial vigor,
in general, was entirely different from that of, say, Aneurin Bevan, who in
1946 warned against judicial sabotage [of] socialist legislation.5 There are
many factors that have led to this important development, and as a point of
national pride, I must mention among themas a number of the authors
agreethe influence of Ronald Dworkin, an American teaching, writing, and
lecturing in Britain since 1969. Here, too, the circle of Parliamentary sover-
eignty and fundamental rights is squared in the Human Rights Act of 1998,
which binds public authorities, but allows Parliament to legislate inconsist-
ently with the rights. . . . [and] requires all legislation to be read and given
effect so far as possible to make it compatible with [the provisions of the
European Convention on Human Rights.]6
This volumeparticularly Professor Bogdanors introduction and conclusion,
the essays by Stevens, Jowell, Feldman, and Hadfield, and the useful charts and
chronology that appear as appendicesis an appetizing and stimulating
antipasto to the more substantial meal that the reader stimulated by these
essays must find elsewhere. Thorough documentationincluding notes,
bibliography, and indexwill greatly assist that search.

5
See Jeffrey Jowell, Administrative Law, in THE BRITISH CONSTITUTION IN THE TWENTIETH CENTURY 384
(Vernon Bogdanor, ed., Oxford University Press 2003) (quoting Aneurin Bevan).
6
See David Feldman, Civil Liberties, in THE BRITISH CONSTITUTION IN THE TWENTIETH CENTURY, supra note 5
at 465.