Britains legacy

Two books that draw on history to explain the present.

THE Supreme Court of India has ruled time and again that the conventions of the British Constitution, especially in the realm of the powers of the President and Governors, are applicable in the interpretation of the Constitution of India. The United Kingdom does not have a written Constitution. Various statutes and a large corpus of conventions make up its constitutional system.

But the British Constitution has evolved a lot in the 60 years since India became independent. Dr. Elizabeth Wicks traces the historical events since the 1688 Glorious Revolution, which yielded the Bill of Rights, to the devolution of powers to Scotland, Wales and Northern Ireland in 1998 and the Human Rights Act, 1998. It is history with a purpose: elucidation of the finer points of the Constitution amidst revolutionary change.

Professor Anthony Kings book seeks to do for the British Constitution at the beginning of the 21st century what Walter Bagehot did for it in the latter part of the 19th century. It shares his fundamental proposition, namely, that the Constitution works differently from what the people think.

Both books draw on history to explain the present. Wicks survey covers the 1707 Union between England and Scotland, which is under strain now three centuries later; the first Prime Minister, Robert Walpole (1721), who spent his entire career denying that he was any such thing; the Reform Act, 1832; the Parliament Act, 1911, which put the House of Lords in its proper place; the profound domestic impact of the European Convention on Human Rights; the 1972 European Communities Act; and the Acts of 1998 on devolution and human rights. In fact the survey begins with the Magna Carta (1215).

It is a work of erudition and fine insights and is written in a style free from jargon. The Constitution has been democratised, if one may use the word. Limited government, greater awareness of human rights, democratic representation, curbs on the powers of the Lords and the Crown, decentralisation and entrenchment of a right to self-determination within the U.K. Constitution can also be seen as a modern reconciliation of the need to pay regard to the wishes of the people (as a group, as well as individually). Within the context of devolution, especially in Scotland, the right to self-determination has constitutional influence and potentially may serve as a restraint upon external integration, for example within the E.U.

Wicks sounds a note of caution. We should not become complacent, however, that the Constitution can continue to offer adequate protection against increasingly centralised executive power, especially in times when the state is perceived as increasingly under threat from disaffected groups and individuals posing genuine threats to national security. There is an unmistakable irony in the coincidence that, in the human rights age, when individual rights are codified, protected and relied upon to an unprecedented extent, the threat to our liberty is greater than it has been for centuries: detention without trial, erosion of trial by jury, identity cards, restriction on free speech.

The eternal need to balance individual freedom with security of the domestic state presents even more difficult challenges for the U.K.s Constitution and for those who act under it. But it is a challenge that the evolving Constitution is well suited to meet, given centuries of development in response to the needs of contemporary society.

If any one can make a textbook interesting, it is Anthony King. He might resent his book being called that. But so comprehensive and accurate is the study of the institutions and rules of the British constitutional system that it can and should serve as an excellent guide. Particularly relevant to us is the chapter on judicial review aptly entitled The Judges Come Out. Passivity before the 1960s has given way to increased activism without any of the wilful flouting of the law which some judges practise.

The author holds that there is no need for a written Constitution. There is neither a constitutional crisis nor popular demand nor national consensus for it. A constitutional convention would be torn apart by dissensions. That is no reason for neglecting a specific problem that demands attention.

Like Wicks, King also warns against complacency. Britains new constitutional edifice needs propping up, a few major repairs and skilful maintenance. Despite its unfortunate appearance, it does not yet need to be totally rebuilt. Sound advice, too, for Indias Constitution.