THE CONSTITUTION AFTER SCOTT: GOVERNMENT UNWRAPPED by Adam Tomkins. Oxford, U.K.: Clarendon Press, 1998. 279pp. Cloth $85.00. ISBN 0-19-826291-4.

Reviewed by Jerry Waltman, Department of Political Science, University of Southern Mississippi. Email: jwaltman@ocean.st.usm.edu.

 Time was when the British constitution was considered rather fixed, even though unwritten. The democratic political evolution of the nineteenth century was capped by the development of modern political parties. Each of the major parties would present its manifesto at election time, giving the voters a real choice in the direction of public policy. An executive formed out of Parliament still found its legal authority in having its leaders assume the mantle of Ministers of the Crown. A loyal cadre of backbench M.P’s would assure that the government’s policies were enacted as presented. The Opposition would hold the government of the day accountable by keeping up a drumbeat of criticism during debates, and especially through the mechanism of Parliamentary questions, oral and written. In theory, every corner of British government had to fall under the domain of some minister, in order for Parliament to hold the executive branch so accountable. That accountability could be exercised by a vote of "no confidence" which resulted in the ouster of the entire ministry, but the more usual hope in the twentieth century was that the government would be ousted at the next election. Defenders of the system argued that it combined democratic accountability and executive flexibility in about the right proportion.

Exactly why anyone thought the constitution had reached some end state of evolution, when it had been evolving since around the eighth century, seems rather quaint today. First, the economic difficulties of the 1970s strained the polite consensus of the postwar period. Then, growing bureaucratic rigidity in the far-flung quilt of the state coupled with evidence of a lack of real accountability in such sensitive areas as the police and intelligence services led to disquiet in a number of quarters. Mrs. Thatcher’s government’s commitment to ideologically driven policy goals caused many of the older conventions to unravel. Even though she had little interest in constitutional issues per se, her approach indirectly raised a number of intermediate level constitutional questions. And always in the background there was the matter of Britain’s connection to Europe. Center-left groups in particular, but others as well, began to talk openly of major constitutional reforms: a Bill of Rights, restructuring of the House of Lords, a proportional representation election system, a semi-federal system, and so forth. For the last decade or so, constitutional issues have been decidedly on the political agenda, culminating in the constitutional reform-laden Labour Party manifesto of 1997.

Into this milieu in 1995-96 stepped Sir Richard Scott, then a Court of Appeals Judge, and now Adam Tomkins, a lecturer in law at King’s College, London, with his rewarding book on Sir Richard’s activities. Scott was dragged into the constitutional morass when he was drafted to conduct an inquiry into a political scandal involving the sale of weapons and military-related equipment to Iraq. What made ordinary, if deadly, political skulduggery raise constitutional issues concerned primarily the accuracy of answers given to parliamentary questions by various ministers.

Between 1984 and 1988, the British government had a rather stringent policy regarding sales to Iraq of any goods having potential military use. In 1988 the guidelines were loosened but no public announcement made. When queried in the House of Commons about whether any change in policy had occurred, the ministers concerned provided less than accurate answers. Then, in the early 1990s customs and excise began prosecuting several firms for obtaining export licenses under false pretenses. The most glaring case was against a firm named Matrix Churchill, which collapsed when a key prosecution witness, a former Conservative minister, gave inconsistent evidence in court. The issue involved the use of what are called Public Interest Immunity certificates. Amid the publicity generated by these two events, the prime minister was compelled to establish an inquiry. With nothing similar to the independent counsel law, the usual procedure in Britain is to appoint someone with impeccable credentials to conduct the inquiry and issue a report.

Adam Tomkins walks the reader through the complexities of the issues before the Scott inquiry, the procedures used by Mr. Justice Scott, the substance of the report, and its impact with enough detail to be interesting without becoming tedious. In the process, we get an ample supply of quotations from various ministers, civil servants, and others, providing a lot of the flavor of the episode. (For example, when one senior civil servant was asked why he gave different versions in court and at the inquiry regarding the advice he gave, he actually said "I quite simply misled myself." P. 73.) He devotes chapters to the relationship between ministers and Parliament, the accountability of the civil service, the matter of freedom of information, the always difficult and delicate issue of control of the intelligence services, and how public interest immunity law works. Each of these has a solid amount of background material, which can put the American reader in the picture if need be. Too, the discussions are well organized and logically presented. He then turns to a comparison of the American Iraqgate scandal, although he covers it in more abbreviated fashion. This part seems to work a little less well, although there are some interesting points on both public administration and the constitution.

Obviously, there are times when government needs to keep its decision making processes shielded from public view. Moreover, politicians have a stock in trade in ambivalence and ambiguity. If, though, the central mechanism of accountability is to be ministerial answers to parliamentary questions, there needs to be as full and frank a disclosure as possible. Otherwise, how can Parliament exercise its constitutional role? In the years after the Second World War, a document known as QUESTIONS OF PROCEDURE FOR MINISTERS was drawn up to provide guidance on this issue. It was not until 1992, however, that it was published. Its general terms are accepted by everyone: ministers should not tell blatant lies nor knowingly provide inaccurate information. However, these guidelines leave a lot of room for uncertainty. In this case, and undoubtedly others, where is the line between "knowing" and "should have known"? To what degree, that is, are ministers constitutionally and personally responsible for the complete accuracy of their answers? What if an answer is truthful in every respect but still misleading because some critical element of the truth has been omitted? Are ministers responsible to Parliament for operational as well as policy matters? Tomkins leads us through the Scott report’s detailed analysis of these quagmires with clarity and skill. His conclusions are that the notion of ministerial responsibility is in better shape now than formerly, owing at least in part to the Scott report, but that it needs to be drawn more tightly still. In particular, he notes that the quality of day-to-day scrutiny is as important as the dramatic forced resignation.

The chapter on ministers and Parliament is the core of the book, but the remainder supplements it well. We enter the murky world of civil servants and their relationship to ministers and to Parliament. Their dual role as public servants and agents of the government of the day can produce many conflicts. This was given some urgency when the Thatcher government implemented a dispersal of power scheme called "Next Steps." Under this plan, civil servants were granted a great deal of flexibility to manage various agencies. Should they then be directly accountable to Parliament or to Parliament via the minister? In the matters at hand, civil servants made decisions regarding export licenses and it is not clear how much the ministers were informed. In any event, this chapter is a thorough and admirable summary of what happened and why it had constitutional implications. The chapters on freedom of information and control of the intelligence services are similarly drawn.

For American specialists, the chapter on public interest immunity may be the most interesting. Ministers are empowered to sign Public Interest Immunity (PII) certificates, a move which declares that the release of certain documents would damage the public interest. This effectively blocks access to these documents, most commonly at the discovery stage of a trial. Traditionally, these were signed in civil trials; here, though, the directors of the Matrix Chruchill company on trial on criminal charges ran up against PII certificates signed by three different ministers. The company’s officials alleged that the documents in question would show that they had fully informed the proper authorities of the nature of the equipment they were shipping to Iraq. When the trial collapsed, there was an outcry, and Scott given a writ to look into the whole matter of PII. A case decided in the House of Lords after the publication of the Scott report has gone far to clear up several critical questions surrounding PII. However, the penchant for secrecy which has historically plagued British government, Tomkins notes, shows no sign of abating.

The current period is one of considerable constitutional change in Britain. The Blair government has launched several initiatives in this area that stand to have enormous long-run consequences. Whether this will still the movement for a written constitution remains to be seen. Tomkins’ book makes interesting reading , particularly if one is aware of the constitutional debates. But even if not, the book has value. It is written with a somewhat legalistic approach, in logical outline form. Furthermore, it stays close to the topic at hand. But it is more than dry legalistic prose; it manages to bring the issues it touches to life. Moreover, we get a refreshing dose of the old-fashioned type of academic writing, in which the author is not hesitant to say "this is good" or "that is bad." It has a position, but not a narrow partisan one; instead, his values are liberal constitutionalism and democratic accountability. If the book has a limitation, and this is not meant as a criticism, merely a statement of fact, it is that inadequate attention (except in one very important section) is paid to how the political parties skew the operation of the House of Commons.

When he addresses himself to major constitutional reform, he comes down resolutely on the side of keeping Parliament as the repository of accountability, not vesting additional powers in the courts. Thus, he views the reform of Parliament as the desired focus of constitutional change, not the drafting of a written constitution. At the end of the day, it is a typically British response: incrementalism coupled with a deep faith in the capacity and ability of Parliament and those who sit in it.

Copyright 1995