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vote to women aged over thirty. The Act of 1928 lowered the voting age for
women to twenty-one, which was the same as for men, and the principle of ˜one
man or woman, one vote™ was ¬nally achieved when the Representation of the
People Act 1948 abolished the business and university franchises which had
quali¬ed certain persons to cast more than one vote.
Democracy as established in the United Kingdom is a form of that ˜liberal
democracy™ which is particularly associated with the countries of Western
36 British Government and the Constitution


Europe, a number of Commonwealth countries and the United States. With us it
occurs as a system of representative and responsible government in which voters
elect the members of a representative institution, the House of Commons, and
the government is largely chosen from and, in turn, accountable through the
Commons to the electorate itself.

Jack Lively, Democracy (1975), pp 43“4

What then are the conditions necessary for the existence of responsible government? What
is needed to ensure that some popular control can be exerted over political leadership, some
governmental accountability can be enforced? Two main conditions can be suggested, that
governments should be removable by electoral decisions and that some alternative can be
substituted by electoral decision. The alternative, it should be stressed, must be more than
an alternative governing group. It must comprehend alternatives in policy, since it is only if
an electoral decision can alter the actions of government that popular control can be said to
be established. The power of replacing Tweedledum by Tweedledee (the ˜Ins™ by the ˜Outs™,
as Bentham had it) would be an insufficient basis for such control. To borrow the economic
analogy, competition is meaningless, or at any rate cannot create consumer sovereignty,
unless there is some product differentiation.
In detail there might be a great deal of discussion about the institutional arrangements
necessary to responsible government, but in general some are obvious. There must be free
elections, in which neither the incumbent government nor any other group can determine the
electoral result by means other than indications of how they will act if returned to power. Fraud,
intimidation and bribery are thus incompatible with responsible government. . . . Another part
of the institutional frame necessary to responsible government is freedom of association.
Unless groups wishing to compete for leadership have the freedom to organize and formulate
alternative programmes, the presentation of alternatives would be impossible. Lastly, freedom
of speech is necessary since silent alternatives can never be effective alternatives. In consid-
ering such arrangements, we cannot stick at simple legal considerations; we must move from
questions of ˜freedom from™ to questions of ˜ability to™. The absence of any legal bar to asso-
ciation will not, for example, create the ability to associate if there are heavy costs involved
which only some groups can bear. Nor will the legal guarantee of freedom of speech be of
much use if access to the mass media is severely restricted.
This could be summed up by saying that responsible government depends largely upon
the existence of, and free competition between, political parties.

The degree of in¬‚uence or control over government that is exercisable by the
electorate depends upon a variety of factors, among them the electoral system
adopted, party organisation and the particular concept of representation
(˜delegation™ or ˜authorisation™) which the constitution embodies. These are
matters to which we shall return in chapter 8.
A simple, majoritarian version of democracy would claim for the elected
representatives of the people an unquali¬ed power to act upon whatever view
they might take of the public interest. In this version no individual or minority
37 The ideas of the constitution


rights or interests could legitimately be opposed to decisions supported by
a majority in the elected assembly. ˜We are the masters now™ would be a conclu-
sive response to opposition or protest, and the credentials of democracy might
be invoked to exclude or victimise those who dissented, or were unpopular, or
belonged to vulnerable minorities such as single parents, homeless young
people, asylum-seekers and the impoverished underclass of the long-term
unemployed.
This would surely be a narrow understanding of democracy which would
empty it of much of its virtue. A democracy that admitted no restraints upon
the will of the majority would be liable quickly to lose legitimacy and moral
justi¬cation and would endure only as long as it commanded enough force to
contain dissent and dissatisfaction. A more inclusive and more viable version of
democracy accepts limitations upon majority rule in a toleration of minority
values, opposition and dissent, in a willingness to share information and to
consult, and in respect for fundamental individual rights and freedoms.
Cass Sunstein (Designing Democracy (2001)) speaks in this connection of the
˜internal morality of democracy™, which includes a commitment to the equality
of citizens, the protection of fundamental rights and processes of decision-
making based on openness, consultation, receptivity to argument and the
giving of reasons. Exclusive reliance on voting power in a majoritarian system
disregards values such as those which are integral to a mature and fully realised
democracy. They need not (and perhaps cannot entirely) be given formal
expression in a written constitution, but they are standards by which the claim
that our unwritten constitution is in accord with democratic principle must be
judged. One question, of course, is who should do the judging: should democ-
ratic institutions be self-regulating in terms of these values, should it be the
people who decide or should it be some other body, such as the courts of law?
(See further Prosser, ˜Understanding the British constitution™ (1996) 44 Political
Studies 473. Note too the view of Sir John Laws that the ˜moral force™ of democ-
racy ˜depends in large measure upon the extent to which it vindicates individual
liberty™ and that ˜the rule of reasonableness™ in the exercise of public power ˜is
a requirement of democracy itself ™: The Golden Metwand and the Crooked Cord
(ed Forsyth and Hare 1998), pp 194“6.) Even within the idea of democracy,
then, we can see a clear tension between the extent to which a constitution
should give expression to the will of the majority and the extent to which it
should impose limitations on the will of the majority, in the interests of
openness, opposition, dissent and individual rights.


(b) Participatory democracy
The kind of liberal, representative and largely indirect democracy that is
re¬‚ected in our present constitutional arrangements is neither ¬‚awless nor
immutable. As such, we should be careful to consider the claims of other models
of democracy.
38 British Government and the Constitution


CB Macpherson, The Life and Times of Liberal Democracy (1977), pp 6“8

Would it not be simpler to set up a single model of present liberal democracy, by listing the
observable characteristics of the practice and theory common to those twentieth-century
states which everyone would agree to call liberal democracies, that is, the systems in oper-
ation in most of the English-speaking world and most of Western Europe? Such a model could
easily be set up. The main stipulations are fairly obvious. Governments and legislatures are
chosen directly or indirectly by periodic elections with universal equal franchise, the voters™
choice being normally a choice between political parties. There is a sufficient degree of civil
liberties (freedom of speech, publication, and association, and freedom from arbitrary arrest
and imprisonment) to make the right to choose effective. There is formal equality before the
law. There is some protection for minorities. And there is general acceptance of a principle
of maximum individual freedom consistent with equal freedom for others.
. . . It is all too easy, in using a single model, to block off future paths; all too easy to fall
into thinking that liberal democracy, now that we have attained it, by whatever stages, is
fixed in its present mould. Indeed, the use of a single contemporary model almost commits
one to this position. For a single model of current liberal democracy, if it is to be realistic
as an explanatory model, must stipulate certain present mechanisms, such as the competi-
tive party system and wholly indirect (ie representative) government. But to do this is to
foreclose options that may be made possible by changed social and economic relations. There
may be strong differences of opinion about whether some conceivable future forms of
democracy can properly be called liberal democracy, but this is something that needs to be
argued, not put out of court by definition. One of the things that needs to be considered is
whether liberal democracy in a large nation-state is capable of moving to a mixture of
indirect and direct democracy: that is, is capable of moving in the direction of a fuller
participation, which may require mechanisms other than the standard party system.

The democratic ideal is imperfectly realised in existing political institutions:
the processes of government are remote from the mass of the people, who
participate only indirectly and to a limited extent in public decision-making.
Democratic representation, it has been said, ˜has served not only as a necessary
instrument of accountability, but also as a means of keeping the people at arm™s
length from the political process™ (Beetham in D Held (ed), Prospects for
Democracy (1993), p 60). Indeed, as Bernard Manin has demonstrated, rep-
resentative government was designed by its founders to be an alternative
to, and not a species of, democratic government. One of the remarkable trans-
formations in political thought since the eighteenth century is the now
commonplace acceptance of representative government as a plausible variant
of democracy. (See B Manin, The Principles of Representative Government
(1997).) As Macpherson indicates, the theory of representative democracy
may be opposed “ or supplemented “ by one of participatory democracy
which would accord a more active political role to the people. Could new
institutional arrangements be devised which would provide for greater partic-
ipation by the people in the working of the constitution? Active citizenship and
39 The ideas of the constitution


participation might be furthered by policies of decentralisation (devolution of
power to localities), subsidiarity (decision-taking at the lowest practicable
level) and improved processes of consultation, as well as by the democratisa-
tion of political parties and of the management of social institutions (schools,
hospitals) and the workplace. In addition, some would argue for an extended
recourse to direct democracy, in the form of referendums.
(See further C Pateman, Participation and Democratic Theory (1970); D Held
and C Pollitt (eds), New Forms of Democracy (1986); I Budge, The New
Challenge of Direct Democracy (1996); Pinkney, ˜The sleeping night-watchman
and some alternatives™ (1997) 32 Government and Opposition 340; Saward,
˜Reconstructing democracy: current thinking and new directions™ (2001) 36
Government and Opposition 559.)
CB Macpherson reminds us in The Real World of Democracy (1972), p 4, that
a liberal democracy, like any other organisation of government, is a system of
power “ a system ˜by which power is exerted by the state over individuals and
groups within it™, and further that:

a democratic government, like any other, exists to uphold and enforce a certain kind of
society, a certain set of relations between individuals, a certain set of rights and claims
that people have on each other both directly, and indirectly through their rights to property.
These relations themselves are relations of power “ they give different people, in different
capacities, power over others.

Representative democracy is a great achievement, no doubt, but it does not
necessarily prevent an over-centralisation of state power, the dominance of
a political elite or the emergence of unaccountable private corporations
wielding considerable economic power. Democracy is ˜un¬nished business™
(P Clarke, Deep Citizenship (1996), p 23) and the search must go on for means
of extending the democratisation of our country and institutions. Paul Hirst
has argued that this may be achieved by building on voluntary associations and
communities as the reinvigorated, democratically managed units of a pluralist
state: Representative Democracy and its Limits (1990); Associative Democracy
(1994); From Statism to Pluralism (1997); ˜Renewing democracy through
associations™ (2002) 73 Political Quarterly 409. James Tully would go further,
calling for a revised constitutionalism founded on cultural diversity and extend-
ing ˜self rule™ to the variety of cultures of which society is composed: Strange
Multiplicity: Constitutionalism in an Age of Diversity (1995).
See generally J Hyland, Democratic Theory: The Philosophical Foundations
(1995); M Saward, The Terms of Democracy (1998); D Judge, Representation:
Theory and Practice in Britain (1999); D Beetham, Democracy and Human
Rights (1999); J Dryzek, Deliberative Democracy and Beyond (2000); Morison,
˜Models of democracy™ in J Jowell and D Oliver, The Changing Constitution
(5th edn 2004); D Held, Models of Democracy (3rd edn 2006). The observance
of democratic principles in practice in the United Kingdom is critically
40 British Government and the Constitution


examined by S Weir and D Beetham, Political Power and Democratic Control
in Britain (1999) and D Beetham et al, Democracy under Blair (2003). For
a di¬erent perspective, see G Graham, The Case Against the Democratic
State (2002).
Questions about the nature and vitality of British democracy are raised
by new developments and arguments concerning the electoral system, referen-
dums, the role of pressure groups and the organisation of political parties.
(See in more detail chapter 8.)


2 Parliamentary sovereignty
For Dicey, the greatest British constitutional lawyer of the nineteenth century,
whose magisterial Law of the Constitution was ¬rst published in 1885, it was ˜the
very keystone of the law of the constitution™ that Parliament is the sovereign or
supreme legislative authority in the state.


Dicey, The Law of the Constitution (1885), pp 39“40

The principle of Parliamentary sovereignty means neither more nor less than this, namely,
that Parliament . . . has, under the English constitution, the right to make or unmake any
law whatever; and, further, that no person or body is recognised by the law of England as
having a right to override or set aside the legislation of Parliament.


The legislative supremacy of Parliament, increasingly asserted in the six-
teenth and seventeenth centuries, was assured by Parliament™s victory in the
Civil Wars of the 1640s and by the so-called ˜glorious™ revolution of 1688“89,
which, among other things, established the primacy of statute over preroga-
tive. Academic lawyers, drawing on works of political science, subsequently
embraced it as orthodox doctrine, and the courts propounded it as law. It was
at once historical reality, constitutional theory and a fundamental principle of
the common law. In accordance with this principle the courts have held that
statutes enacted by Parliament must be enforced, and must be given priority
over rules of common law, over international law binding upon the United
Kingdom, over the enactments of subordinate legislative authorities, and over
earlier enactments of Parliament itself. ˜Parliamentary sovereignty™ was, as we
have seen, Dicey™s phrase, and it has become widely accepted. But while conve-
nient shorthand, it is not the most accurate label that could have been chosen.
What the doctrine establishes, as the quotation from Dicey™s Law of the
Constitution reveals, is the legal supremacy of statute, which is not quite the
same thing as the sovereignty of Parliament. It means that there is no source of
law higher than “ ie more authoritative than “ an Act of Parliament. Parliament
may by statute make or unmake any law, including a law that is violative of inter-
national law or that alters a principle of the common law. And the courts are
obliged to uphold and enforce it.
41 The ideas of the constitution


For the avoidance of doubt, it should be added that it is only Acts of the
Westminster Parliament that enjoy this legal status. Acts of the Scottish
Parliament are not legally supreme; nor are the measures adopted by the other
devolved institutions in Wales and Northern Ireland. Courts may strike down
Acts of the Scottish Parliament if they violate the terms of the Scotland Act 1998
or if they are incompatible with Convention rights or with EU law. In Dicey™s
terms, the Scottish Parliament has the power to make or unmake only those laws
which it is authorised by the Scotland Act 1998 to make or unmake; and, further,
courts are recognised as having a right to override or set aside the legislation of
the Scottish Parliament in the circumstances as laid down in the Scotland Act.
While we are on the subject of Scotland, the references to ˜the English constitu-
tion™ and to ˜the law of England™ in Dicey™s quotation should not go unnoticed.
The doctrine of the sovereignty of Parliament has not always been accepted by
Scots lawyers as warmly as it has been received in England. There is a body of
opinion in Scots law that the Westminster Parliament is not free to legislate in
contravention of the terms on which the Union of Scotland and England was
settled in 1707. That Union, so the argument goes, abolished the old Scottish
and English Parliaments and replaced them with a new British Parliament in
Westminster, the new Parliament being subject to the terms of its creation as
laid out in the Acts (or Treaties) of Union. This argument was accepted, albeit
obiter, by the Lord President of the Court of Session (Lord Cooper) in the
famous case of MacCormick v Lord Advocate 1953 SC 396 but it is by no means
clear that Lord Cooper stated the Scots law position accurately. We consider

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