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ical life (such as devolution in Northern Ireland). As Nevil Johnson has written
(Reshaping the British Constitution (2004), p 5):

there are persuasive grounds for concluding that most of the reforms have not been care-
fully thought through, nor have they been seen in relation to each other and to much of the
customary constitution that nominally at least still survives.

Predicting the future of the constitution is a treacherous exercise, and we do
not propose to embark upon it here, but one thing seems clear: there will be
more reform yet. Precisely what reforms we shall see, and exactly what form
they will take, are matters on which we can o¬er no safe guidance. One ques-
tion, though, is perhaps worth speculating upon: is the United Kingdom likely
in the near future to adopt a written constitution, and should it do so?


(d) A written constitution?
Most of the rules of our constitution do, of course, exist in written form, some-
where. Lord Scarman has said that ˜today our constitution is not “unwritten” but
hidden and di¬cult to ¬nd™ (Why Britain needs a Written Constitution (1992),
p 4). Besides the great number of statutes that may be labelled as ˜constitutional™,
the written sources of our constitution include law reports, as the repository of
many common law or judge-made rules a¬ecting constitutional powers and rela-
tionships. In addition, as we shall see, some constitutional conventions have been
put on written record in the interest of clarity and for avoidance of doubt. There
are also many informal but authoritative codes, memoranda, notices and other
documents produced within government which direct the behaviour of ministers
or o¬cials and can be seen as belonging to the written part of our constitution,
even though they do not have the status of law. Some of these documents are of
great importance to the way in which government operates and some of the rules
and procedures which they contain might be included in a written constitution,
if we had one. As it is, documents of these kinds are easily overlooked in any
attempt to enumerate the sources or written elements of the constitution. Among
the more important of them are the Civil Service Code (rules of conduct for civil
servants); the Ministerial Code: A Code of Conduct and Guidance on Procedures for
Ministers; the so-called ˜Osmotherly Rules™, Departmental Evidence and Response
to Select Committees; and Government Accounting (Treasury guidance on the
¬nancial procedures and responsibilities of government departments).
30 British Government and the Constitution


In the 1970s a written constitution, as a remedy for the perceived ills of the
body politic, was urged by, among others, Hood Phillips (˜Need for a written
constitution™ in WJ Stankiewicz (ed), British Government in an Era of Reform
(1976)) and Lord Hailsham (Elective Dictatorship (1976), pp 12“14). Arguments
for a written constitution were renewed in the 1990s and signi¬cant contri-
butions to the debate were made by the publication of three draft constitutions
for the United Kingdom: the ˜MacDonald Constitution™, drawn up by John
MacDonald QC and published in a Liberal Democrat paper (Green Paper No 13,
We, The People (1990)); Tony Benn™s Commonwealth of Britain Bill, presented
to the House of Commons in May 1991; and The Constitution of the
United Kingdom, published by the Institute for Public Policy Research in 1991.
(These essays in constitution-making are analysed by Oliver, ˜Written constitu-
tions: principles and problems™ (1992) 45 Parliamentary A¬airs 135. See also
Cornford, ˜On writing a constitution™ (1991) 44 Parliamentary A¬airs 558 and
Brazier, ˜Enacting a constitution™ (1992) 13 Stat LR 104.)
The arguments for a written constitution deserve serious consideration.
There is a case for giving to our most highly valued constitutional principles the
special status and authority that would result from their embodiment in a
constitution which was intended to endure. A more complete separation of
powers might be instituted in the written constitution, reducing the power of
the executive to control and direct the working of Parliament. The relations
between the countries and regions of the United Kingdom could be put on a
¬rmer and clearer basis, possibly on a federal plan. The status of local govern-
ment could be con¬rmed and protected, preventing the sort of erosion of its
independence that occurred under the Thatcher Governments (see chapter 4).
The ¬‚uidity and uncertainty of some of our most important conventions might
be corrected by putting them into writing. The constitution would rest upon
the authority not of Parliament but of the people: a referendum could be held
to approve it and be required for its amendment.
If these arguments are weighty, there is much to be said on the other side. The
security that can be given to leading principles and fundamental rights by an
entrenched written constitution should not be exaggerated. Certainly the con-
stitution could be made di¬cult to amend “ if not, much of the point of having
a written constitution would be lost “ but this might work as a brake on the nec-
essary adaptation of the constitution to social change. Sir Stephen Sedley aptly
remarks (in Lord Nolan and Sir Stephen Sedley, The Making and Remaking of
the British Constitution, The Radcli¬e Lectures (1997), p 88) that a written
constitution:

has to be negotiated with and by an infinite range of interests and viewpoints, among whom
there will be the winners and losers dictated by the balance of power at the moment of
enactment. Simply to put in writing our arrangements for the distribution and exercise of
state power at a point of history where no comprehensive new consensus has emerged is
to risk consolidating state power wherever it happens at that moment to reside.
31 The British constitutional order


Compare the following comments by Andrew Gamble (in I Holliday, A Gamble
and G Parry (eds), Fundamentals in British Politics (1999), p 26):

For its proponents the great virtue of the British state as a liberal state lies precisely in its
undefined character, because it is this which gives it its flexibility and pragmatism, its ability
to respond to new interests and demands and, by making timely concessions and accom-
modations, to preserve its essential institutional core intact. . . . The danger of any kind of
codified constitution from this perspective is that it locks in a particular set of arrangements
which may be the best available at that time, but may later be judged inappropriate and
then may be very difficult to change.


Ours has traditionally been a political constitution, in which change is
directed and con¬‚icts are largely resolved through the political process (see
Gri¬th, ˜The Political Constitution™ (1979) 42 MLR 1). When a written consti-
tution is in place arguments about its e¬ect are conducted in legal terms, as an
exercise in interpretation, and are displaced from the political forum into the
courts. As Ian Holliday remarks (in G Parry and M Moran (eds), Democracy and
Democratization (1994), p 253), ˜juridi¬cation of politics is one of the major
problems created by a written constitution™: much power, and much trust, are
given to judges. The role which they may assume is exempli¬ed by the history
of the United States Supreme Court. Rights guaranteed by the United States
Constitution were in the years 1880“1930 used by Supreme Court justices,
imbued with ideas of laissez-faire capitalism, as weapons against progressive
social welfare legislation. (See eg, Lochner v New York 198 US 45 (1905), in
which the Supreme Court held that a statute limiting employment in bakeries
to sixty hours a week and ten hours a day was invalid as an arbitrary interfer-
ence with the freedom to contract guaranteed by the Fourteenth Amendment
to the Constitution.) Again, the New Deal programme, undertaken by President
Roosevelt to counter the results of economic depression, was substantially
nulli¬ed by Supreme Court decisions in the years 1934 to 1936. In its active
phases the Supreme Court has been the source of far-reaching judicial legisla-
tion, whether of a conservative or a liberal tendency, and has had a substantial
in¬‚uence on social and political a¬airs in the United States.
This is the kind of role that our courts might be given by a written constitu-
tion. It may be that we are already taking that course, with the enhanced con-
stitutional adjudication entrusted to our courts by the Human Rights Act 1998
and the devolution legislation. Perhaps it is becoming true here, as in the United
States, that the constitution ˜is whatever the judges say it is™ (Sedley, ˜The sound
of silence: constitutional law without a constitution™ (1994) 110 LQR 270, 277).
Indeed, perhaps this is the truly overarching theme of the constitutional
changes we have seen in Britain not only since 1997 but since the early 1970s:
namely, that we are moving from a political constitution to a law-based or
perhaps even a judge-based constitution. In the chapters that follow, we will
come back to this question many times.
32 British Government and the Constitution


On constitutional reform, see further V Bogdanor, Power and the People: A
Guide to Constitutional Reform (1997); R Brazier, Constitutional Reform (2nd
edn 1998); R Blackburn and R Plant (eds), Constitutional Reform: The Labour
Government™s Constitutional Reform Agenda (1999); P Catterall, W Kaiser and
U Walton-Jordan, Reforming the Constitution: Debates in Twentieth-Century
Britain (2000); Hazell et al, ˜The constitution: rolling out the new settlement™
(2001) 54 Parliamentary A¬airs 190; Johnson, ˜Taking stock of constitutional
reform™ (2001) 36 Government and Opposition 331; D Oliver, Constitutional
Reform in the United Kingdom (2003); and N Johnson, Reshaping the British
Constitution (2004).
2

The ideas of the constitution




Contents
1 Democracy and the constitution
(a) Representative democracy
(b) Participatory democracy
2 Parliamentary sovereignty
(a) Diceyan orthodoxy
(b) Territorial extent of sovereignty: post-colonial independence
(c) Continuing sovereignty and the ˜new view™
(d) Sovereignty reappraised: three contemporary challenges
(e) Conclusions
3 The rule of law
(a) Government under law
(b) Equality before the law
(c) Discretion and the rule of law
(d) The rule of law: wider conceptions?
(e) The rule of law and parliamentary sovereignty
4 Separation of powers
(a) A political ideal or a legal principle?
(b) The courts in the constitution: judicial review and judicial law-making
(c) Judicial independence and the position of the Lord Chancellor
(d) The courts and Parliament
(e) Parliament and the executive
5 Accountability
(a) Access to information and reasons


˜Successful constitutions and institutions™, says Ian Gilmour (Inside Right:
A Study of Conservatism (1978), p 70), ˜are not mere pieces of machinery. If
they work, it is because of the ideas and beliefs of those who try to work them.™
The British constitution, having evolved over centuries, does not embody any
single constitutional theory. It is the product of a long period of kingly rule,
34 British Government and the Constitution


parliamentary struggle, revolution, many concessions and compromises, a slow
growth of custom, the making and breaking and alteration of many laws.
Although we lack a general theory of the constitution, there has come down to
us the idea of constitutionalism “ of a constitutional order which acknowledges
the necessary power of government while placing conditions and limits upon its
exercise. The British version of constitutionalism has been shaped by a number
of leading ideas or principles: some of these have crystallised as rules or doc-
trines of the constitution; others have in¬‚uenced constitutional thought or have
gained currency as explanations or justi¬cations of particular features of the
constitution. In this chapter we shall consider some of these commanding ideas
or doctrines and their place in the modern constitution. We start with democ-
racy and then move on to consider the sovereignty of Parliament, the rule of
law, the separation of powers and accountability. It will appear that, at times,
there is a con¬‚ict, or tension, between these ideas; between democracy, for
instance, and parliamentary sovereignty, or between sovereignty and the rule of
law. A good deal of contemporary constitutional analysis is concerned with how
such con¬‚icts, or tensions, should be resolved and worked out.


1 Democracy and the constitution
Democracy is not to be taken for granted. Neither is its contemporary accep-
tance as the only form of government able to claim legitimacy to rule. As John
Dunn asks in his recent account of the history of democracy, Setting the People
Free: The Story of Democracy (2005), pp 13, 15:

Why does democracy loom so large today? Why should it hold such sway over the political
speech of the modern world? What does its recent prominence really mean? When Britain
and America set out to bury Baghdad in its own rubble, why was it in the name of democ-
racy of all words in which they claimed to do so? Is its novel dominance in fact illusory: a
sustained exercise in fraud or an index of utter confusion? Or does it mark a huge moral and
political advance, which only needs to cover the whole world, and be made a little more
real, for history to come to a reassuring end?
Why should it be the case that, for the first time in the history of our still conspicuously
multi-lingual species, there is for the present a single world-wide name of the legitimate
basis of political authority?

Democracy came late to the British constitution. Much of our constitutional
architecture was constructed at a time when to accuse someone of harbouring
democratic sympathies was a grave political insult. This is not to say that democ-
racy came late to Britain in comparison with other countries. But it is to say that
several key elements of the British constitution predate the emergence of democ-
racy as an accepted form of government. Nonetheless, democracy deserves to be
treated as the ¬rst of our constitutional themes since the working assumption of
all the principal actors on the constitutional stage, even those who (like the
35 The ideas of the constitution


monarch and the House of Lords) are not themselves democratically elected,
is that Britain is, and ought to consider itself as, a modern democracy. Even if the
assumption is sometimes misplaced or over-stated, it is impossible to under-
stand the way the contemporary British constitution works without taking on
board this basic working assumption. Equally, however, like all assumptions, it
is rebuttable. On no account could today™s British constitutional order accurately
be described as entirely or unambiguously democratic. (Valuable introductions
to the idea of democracy abound. Among the better ones, see R Dahl, On
Democracy (1998) and B Crick, Democracy: A Very Short Introduction (2002).)


(a) Representative democracy
Democracy may be said to have two main elements: representation and
participation. As to the ¬rst, since the achievement of universal su¬rage with the
enactment of the Representation of the People Acts 1918 and 1928 it can be
claimed that the British constitution has embodied the principle of representa-
tive democracy, at least as far as elections to the House of Commons are
concerned. As it is from the House of the Commons that the government of
the day is drawn, it may be said that British government is democratic, notwith-
standing the fact that no one actually elects it as such. The Members of
Parliament who become ministers in the government are elected as Members of
Parliament, but not as ministers. Ministers are appointed by the Prime Minister,
not elected to ministerial o¬ce. The Prime Minister is appointed by the
monarch, who is not elected, of course, but who now appoints as Prime Minister
the person most likely to be able to command majority support in the House of
Commons. There had been advocates of the democratic principle before the
early twentieth century, but democracy was ˜still a pejorative term on both sides
of the House in 1831“2™ (DG Wright, Democracy and Reform 1815“1885 (1970),
p 38) and the idea of government by the whole people, as it would be understood
today, was not accepted by political leaders at any time in the nineteenth century.
Nonetheless, the First Reform Act of 1832 began a process by which the claims
of representative democracy were progressively accommodated with the existing
institutions of government. There was no sudden triumph of democracy. Even
after the Third Reform Act of 1884 only about 60 per cent of the adult male
population, or about 28 per cent of the total adult population, had the vote. The
Representation of the People Act 1918 introduced universal adult male su¬rage
(on condition of six months™ residence in a constituency) and gave the right to

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