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These nation-states present themselves as independent units in the international arena.
From . . . the mid-eighteenth century, it has generally been accepted that the fundamental
principle of international law is that of the formal equality of states, a principle which in turn
yields those of independence and territorial integrity. These principles of the independence,
equality and territorial integrity of sovereign states form the basis for the conduct of inter-
national relations . . .
[C]ertain structural changes are occurring in the international arena which appear to chal-
lenge the traditional role of the nation-state in political and economic affairs. These struc-
tural changes involve the twin processes of integration and fragmentation. Although these
processes seem to be pulling in opposite directions, both present threats to the position of
the nation-state as the predominant actor in . . . political affairs.
18 British Government and the Constitution


The process of integration is the result of the global impact of economic and technologi-
cal change. The world which we inhabit is now genuinely global. It has been noted, for
example, that today even illiterate labourers working in the deepest recesses of tropical rain
forests understand that their livelihoods are not determined by forces operating at the level
of their localities or even within the territorial borders of their states, but by the vagaries of
world markets and the habits, tastes and capacities of consumers in distant countries. But
this observation now applies not only to the cocoa labourers of Ghana but also to workers
in the semi-conductor plants of Scotland and north-east England. With the emergence of
global markets we see the growth in scale and power of transnational corporations and also
the establishment of a variety of international organizations trying to respond to the regu-
latory issues which are presented. This process of world-wide economic integration necessi-
tates a reconfiguration of the international political arena.
The process of fragmentation is, to some extent, a by-product of economic and political
integration. With the growth of world markets, for example, the trend has been towards the
regionalization of economies, and some of these regional entities (e.g., Singapore/Indonesia
or Vancouver/Seattle) have become linked primarily to the global economy rather than to
their host nation-states. In response to these economic trends, which have contributed to
the resurgence of issues of ethnic identity, more extensive powers of government have been
given to regional bodies within the nation-state. This has occurred throughout Europe,
notably in the autonomous regions of Spain and the L¤nder of Germany and as the recent
establishment of a Welsh Assembly and a Scottish Parliament indicates, this process has also
affected governmental arrangements within the United Kingdom . . . Fragmentation under-
mines the traditional structures of the nation-state and has prompted the reconfiguration of
the national political system. Such contemporary trends of integration and fragmentation are
commonly viewed as responses to one powerful phenomenon “ globalization.
Since the end of the Second World War, there has been a spectacular growth in transna-
tional investment, production and trade. In turn, this has led to the establishment of global
financial markets as the major US, European and Japanese banks have become locked into
an international circuit regulating the flow of capital. The major transnational corporations
which have emerged now account for a large proportion of the world™s production and these
corporations, able to disperse their centres of production, are no longer bounded by the ter-
ritories of any particular State.
Many of these changes have been driven by technological development. A revolution has
occurred in transportation and communications systems and, in conjunction with the micro-
chip revolution and the digitalization of information, this has had a profound impact on eco-
nomic activity. Production is now much less tied to specific localities; enterprises increasingly
possess the capacity to shift capital and labour at low cost and high speed. Money is now
able to circulate around the world through invisible networks, in vast quantities and at high
velocity. These developments “ universalized communication, supersonic transportation,
hi-tech weaponry and the like “ have presented a series of serious challenges to the nation-
state. The success of the modern State over the last two hundred years has been based
mainly on its ability to promote economic well-being, to maintain physical security and to
foster a distinctive cultural identity of its citizens. Yet it is precisely these claims which are
now being undermined by [the forces of globalisation].
19 The British constitutional order


Having surveyed the issues, Loughlin™s verdict is that, powerful as the simul-
taneously integrationist and fragmentary forces of globalisation may be, the
state will survive them, and will survive them intact (pp 145“6):

Globalization has created a world of greater interdependence. Nevertheless, although the
phenomenon seems to undermine the power of the nation-state, it is unlikely to lead to its
demise. Indeed, there seems little doubt but that the modern State will remain the primary
form of political organization for the foreseeable future . . .
The State is still the principal agency for managing the economy and promoting the
welfare of its citizens. The critical point for our purposes is that, as a result of structural
changes, the State must acknowledge that, to be effective, it must be prepared to work with
other powerful agencies. To be successful, the State must be able to harness the immense
power now located in private corporations and it must also work in tandem with a range of
supra-national governmental bodies. The State, in short, is obliged to share power.


Loughlin™s analysis is supported by Helen Thompson, who comes to a similar
conclusion: (˜The modern state and its adversaries™ (2006) 41 Government and
Opposition 23, 26, emphasis in the original):

[F]or the modern state to be heading towards crisis, or significant long-term change, at least
one of three things would have to be true: first, consent to particular and reasonably long-
established sites of authoritative rule is breaking down either through large-scale resistance
to the rule of law, or through the rejection of the rules of rule of such a state by a signifi-
cant section of the political community constituted by it, and those who command the state™s
power cannot contain such developments; secondly, previously capable states are unable to
command coercive power against those over whom they rule and against their external
enemies; thirdly, the laws and demands of international institutions and organizations have
enforceable claims against historically sovereign states.


In a compelling overview, Thompson argues that while each of these three
phenomena has occurred at least somewhere in the world in recent times, there
is no overall pattern that may be attributable to overarching forces of globalisa-
tion. She argues, for example, that the ˜most crucial coercive powers that states
enjoy are to tax and to command military forces™ and that the evidence ˜does not
suggest that states are actually taxing less than they did . . . Neither can it be
plausibly claimed that the coercive power of well-established states to tax is
diminishing . . . [and] Even more clearly, the ability of previously capable states
to mobilize armed force has been unimpaired by the end of the Cold War™
(pp 30“3). While she concedes that not all states today ˜enjoy the same degree
of external sovereignty as they did at the end of the 1970s™ (p 34):

such intervention in the internal affairs of nominally sovereign states does not represent a
move beyond Westphalia. In the spirit of Westphalia, powerful states have long tried to
curtail the activities of other states as states.
20 British Government and the Constitution


According to Thompson, and contrary to popular myth, the Peace of
Westphalia (1648) ˜did not result in external state sovereignty against all other
states™. Rather, it ˜legitimized the sovereignty of powerful modern states and the
right of those states to impose limits on the statehood of defeated and aspiring
states. It de¬ned an external world in which sovereignty depended on power
and in which distinctions were made between strong and weak states™ (pp 25“6).
Seen in this light, the policies of contemporary institutions such as the World
Bank and the IMF, where tough conditions are imposed on states in the devel-
oping world, conditions that increasingly speak to constitutional values such as
˜good governance™, ˜accountability™ and ˜transparency™, are not so much a break
from the Westphalia model as its continuation by new means: ˜An international
economy in which indebted states ¬nd that richer states succeed in controlling
their economic decision-making and the parameters of their internal politics
is repeating past history™ (p 36). Thompson™s conclusions are as follows
(pp 39“40):


Whilst the internal authority of some poorer states has certainly buckled under the pres-
sure of economic liberalization, it is the external sovereignty of many poor and small states
that has diminished most significantly, leaving them unable to resist the demands of other
states and international institutions without inviting their own destruction. This is not
because of anything that can sensibly be called ˜globalization™. Neither does it mean that
the modern state is heading towards a general crisis. Rather it suggests that the number
of modern states that can lay claim to effective external sovereignty is diminishing towards
the numbers seen in the more distant past. We are returning to some aspects of an older
political world in which empire “ the rule of a state over territory where it does not, at
least at the moment of subjugation, recognize the subjects as its own “ was central to the
language and practice of politics. The modern state and empire have long been historical
bedfellows.


In a lengthy and thoughtful analysis Neil Walker examines a variety of cri-
tiques of modern constitutionalism, including those associated with globalisa-
tion and post-nationalism. He suggests (as does Gavin Anderson, Constitutional
Rights after Globalization (2005)) that what is needed to account for constitu-
tionalism in today™s world is a developed sense of ˜constitutional pluralism™
(˜The idea of constitutional pluralism™ (2002) 65 MLR 317). Walker says, ¬rst,
that any successful notion of constitutionalism must (p 334):


continue to take the state seriously as a significant host to constitutional discourse. Even
those who would most urgently contend that constitutionalism has to encompass post-
national trends or that constitutionalism is an increasing irrelevance or obstacle to under-
standing or steering forms of social and political organisation, would hardly deny the state
its place in the constitutional scheme.
21 The British constitutional order


He goes on to suggest, however, that:

almost equally uncontroversially, a revised conception of constitutionalism should of course
then also be open to the discovery of meaningful constitutional discourse and processes in
non-state sites . . . Even for those who are most sceptical or pessimistic about the viability
of constitutionalism beyond the state, their position is based either upon an incapacity to
imagine the form in which such post-state constitutionalism might be effectively articulated
and institutionalised or upon an unwillingness to concede that the time is yet ripe for such
an enterprise, rather than upon a refusal in principle to contemplate that a constitutional
steering mechanism, or its functional equivalent, might be appropriate for significant circuits
of transnational power.

Be this as it may, in this book we focus in most of our chapters on British con-
stitutional law and practice, albeit that we aim to explain and demonstrate how
the British constitution accommodates “ sometimes relatively smoothly, but
sometimes not “ sites of constitutional authority both within the United
Kingdom (see especially chapter 4) and beyond its borders (see especially
chapter 5). In this, perhaps it may be said that we are siding with John Dunn™s
judgement (in The Cunning of Unreason (2000), p 66) that, in the United
Kingdom at least, ˜Only massive selective inattention could stop anyone recog-
nizing that states today remain (as they have been for some time) the principal
institutional site of political experience™.


4 Constitutional reform
It has become a truism that in recent years the United Kingdom has been ˜going
through a period of profound constitutional change™ (D Oliver, Constitutional
Reform in the United Kingdom (2003), p v). We have noted above that the
˜New Labour™ Government that took o¬ce in Britain in 1997 did so on a series
of manifesto commitments: to modernise the composition of the House of
Lords and the procedures of the House of Commons; to enact freedom of infor-
mation legislation designed to lead to more open government; to devolve power
to Scotland and Wales; to reform local government; to establish a directly
elected ˜strategic authority™ and mayor for London; to strengthen regional gov-
ernment in England; to enact human rights enforceable in UK courts; and to
continue to work on a bipartisan basis for sustained peace and reform in
Northern Ireland (Labour Party Manifesto, Because Britain Deserves Better
(1997), pp 32“5).
A number of these policies were relatively newly adopted by the Labour Party,
whose traditional hostility to a Bill of Rights, for example, was founded on a fear
that a conservative judiciary would use its provisions to defeat progressive or
socialist legislation (see J Gri¬th, The Politics of the Judiciary (5th edn 1997) and
K Ewing and C Gearty, Freedom under Thatcher (1990), ch 8). Others were more
¬rmly established. Most of these policies had long been advocated by pressure
22 British Government and the Constitution


groups campaigning for constitutional reform (Charter 88, for example, or
Liberty (the National Council for Civil Liberties), or the Campaign for Freedom
of Information) and several of them had been subjected to detailed analysis
by think tanks such as the Institute for Public Policy Research (IPPR) and the
Constitution Unit, based at University College London. The latter, in particu-
lar, published a series of detailed reports on how to make devolution work,
which, along with the ground-breaking work of the Scottish Constitutional
Convention (on which, see chapter 4), greatly contributed to the way in which
the new Labour Government was able to ˜hit the ground running™ and to
embark on its most ambitious constitutional reforms so early in its ¬rst term.
The 1997“2001 Parliament passed legislation or introduced other measures
in ful¬lment of each of the Labour Party™s manifesto pledges on constitutional
reform. Thus, the Human Rights Act 1998 incorporated most of the substan-
tive provisions of the European Convention on Human Rights (1950) into
domestic law; the Scotland Act 1998 and the Government of Wales Act 1998
devolved power to Scotland and Wales; the ˜Good Friday™ or ˜Belfast™ Agreement
led to the enactment of the Northern Ireland Act 1998, under which power was
devolved to Northern Ireland; the House of Lords Act 1999 removed most of
the hereditary peers from the House of Lords; a Freedom of Information Act
was passed in 2000; the Greater London Authority Act 1999 created a mayor and
a Greater London Authority for the nation™s capital; the Local Government Act
2000 sought to give a new lease of life to local democracy; and the Regional
Development Agencies Act 1998 made provision, albeit modest, for the devel-
opment of aspects of economic policy on a regional basis. Meanwhile, the newly
established Modernisation Committee of the House of Commons considered
an array of ways in which Commons procedure could be modernised.
Since 2001 the pace of change “ especially of legislative change “ may have
slowed somewhat, although 2005 saw the enactment of the (slightly mislead-
ingly named) Constitutional Reform Act, which substantially reforms the
powers and responsibilities of the Lord Chancellor and the judicial appoint-
ments process for England, Wales and Northern Ireland, and provides for the
creation of a new Supreme Court to replace the appellate committee of the
House of Lords and the judicial committee of the Privy Council. (At the time of
writing it appears that the Supreme Court will not commence its work until
2009.) Also important is the Legislative and Regulatory Reform Act 2006, which
concerns the relationship between the government™s and Parliament™s law-
making powers. (The ways in which constitutional reform has been carried out
since 1997 were usefully scrutinised by the House of Lords Select Committee on
the Constitution, Fourth Report: Changing the Constitution “ The Process of
Constitutional Change, HL 69 of 2001“02.)
Since 1997 there has also been signi¬cant legislative change in several other
areas that touch upon constitutional law and practice. The funding and conduct
of political parties was (partially) reformed by the Political Parties, Elections
and Referendums Act 2000; human rights and civil liberties have been substan-
23 The British constitutional order


tially a¬ected by such legislation as the Crime and Disorder Act 1998, the
Regulation of Investigatory Powers Act 2000, the Extradition Act 2003, the
Asylum and Immigration (Treatment of Claimants) Act 2004 and the Serious
Organised Crime and Police Act 2005, among several others; and there has in
recent years been a raft of counter-terrorism legislation passed, including the
Terrorism Act 2000, the Anti-terrorism, Crime and Security Act 2001, the
Prevention of Terrorism Act 2005 and the Terrorism Act 2006. See also in this
regard the Civil Contingencies Act 2004.
(This legislation and the various matters it concerns are considered through-
out this book: the Human Rights Act is considered in chapters 2, 5, 10 and 11;
the devolution legislation is considered in chapter 4, as is reform of local
government; reforms to Parliament are considered in chapter 9; the Constitu-
tional Reform Act is considered in chapter 2; and much of the counter-terrorism
legislation is considered in chapter 11.)
Despite all this activity two points must immediately be emphasised. The ¬rst
is that what is listed above cannot be taken to be a complete or even a particu-
larly coherent project of overall constitutional reform; the second is that it is
not to be implied that the constitution was somehow static or unreformed in

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