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POL13: British constitution 2019
Definition of constitution
● (1) 'a section of the most important legal rules regulating the govt and embodied in a document promulgated at a particular moment of time' i.e. American constitution,
● (2) 'a collection of the most important rules prescribing the distribution of power between the institutions of government—legislature, executive and judiciary—and between the individual and the state' —Britain, Israel and New Zealand all have uncodified constitutions
● why does Britain not have a written constitution?
○ almost all codified constitutions mark a new beginning in the nation's history e.g. independence, change of regime. There has not been no fundamental change in the nature of the English state since the time of Oliver Cromwell
(who actually drew up a codified constitution called an Agreement of the
○ Great Reform Act of 1832 closest to a constitutional moment. It reinforced the supremacy of the parliament
○ Sidney Low: 'other constitutions have been built; that of England has been allowed to grow.'
○ the more conceptual reason is that the Parliament represents sovereignty.
There is no point in having a constitution because part of the reason for a constitution is to limit the power of the Parliament. Therefore, 'the Parliament is at once a legislative and constituent assembly' (Bogdanor 2009)
The old constitution
Characteristics of the old constitution
● A.V. Dicey (1835-1922), a 19C jurist, popularised a version of the 'old constitution'
through Introduction to the Law of the Constitution.
○ He announced two fundamental doctrines: parliamentary sovereignty and the rule of law.
○ Both are supposed to be both descriptive and normative.
● Parliamentary sovereignty
○ Dicey famously used the examples of the Act of Union with Scotland and the
Dentists Act 1878 as examples. They had equal status and none has more claim than the other to be considered a supreme law. 'Should the Dentists
Act, 1878, unfortunately contradict the terms of the Act of Union, the Act of
Union would be pro tanto repealed…'
○ H. L. A. Hart distinguished between two versions of the doctrine of parliamentary sovereignty.
■ Continuing omnipotence, embraced by older constitutional theorists:
sovereign in the sense of being free from any legal limitations on it but also from prior legislation. This is what Dicey argued for in the quote above.
■ Self-embracing omnipotence, supported by Hart as the better interpretation: the Parliament should be self-limited by the decisions of its predecessors. 'Parliament would at least once in its history be capable of exercising an even larger sphere of legislative competence than the accepted established doctrine allows to it.'
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Near complete fusion of legislative and executive power
Relies on conventions e.g. royal assent (the monarchy legally can refuse to give assent to laws passed by the Parliament but by convention she wouldn't); Salisbury
Convention (House of Lords should not defeat any legislation that has been promised in the govt's election manifesto; it arose when there is an overwhelming Conservative majority in the House of Lords, but a majority left govt in 1945)
'The old constitution, then, was a political constitution, in that its character was determined by events rather than pre-existing constitutional norms' (Bogdanor 2009).
One author claimed that the old constitution was 'no more and no less than what happened. Everything that happens is constitutional' (Prof John Griffith)
Problem with that interpretation
● The understanding of the British constitution has been very much in the shadow of
Dicey. The first resistance against that was in 1930s (by Sir Ivor Jennings)
○ 'Dicey's word has in some respects become the only written constitution we have' (Jowell and Oliver 1985)
○ Lord President Cooper in the MacCormick v. Lord Advocate (1953) made an obiter that 'the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law'. It is therefore difficult to comprehend why this doctrine should prevail in the Parliament of Great Britain.
● Iain McLean (2010) argues that the British Constitution has always been incoherent.
○ The Acts of Union 1706/7 with Scotland imposed two conflicting duties on the monarch of Great Britain. The incorporated Scottish Act is an Act for securing the Presbyterian Church Government, which it proclaimed as the true
Protestant Religion'. On the other hand, the English Act requires that the monarch should preserve the Church of England. These two incompatible requirements are found in a single Act of Parliament, the (English) Union with
Scotland Act 1706.
● The parliament has not followed the doctrine of 'continuing omnipotence'
○ In the 'Declaratory Articles' of the Church of Scotland Act 1921, Parliament bound itself to recognise the doctrines of the Church of Scotland. All statutes and laws that are inconsistent with the Declaratory Articles would repealed and nullified.
● Dicey was Anglo-centric and a unionist. McLean (2010) argues that his views on Irish
Home Rule actually made his writings on constitution incoherent
○ Throughout his writings Dicey refers to 'England' and the 'English
Constitution' to mean the United Kingdom and the British Constitution
○ Dicey was angry that Gladstone used his name to justify the 1886 Home Rule
Bill (which failed). This was followed by the 1893 (Second) and 1912 (Third)
Home Rule Bill. The latter entered into force without the Lords' assent.
○ He was one of the main godfathers of the Unionist revolt of 1912-14. A
coalition including the king, the leaders of the Opposition, the House of Lords,
and a group of contingently mutinous army officers vetoed the policies of the elected government.
○ Dicey moved from the doctrine of continuing omnipotence first to an ill‐
expressed doctrine of popular sovereignty, and then towards self‐embracing omnipotence. In 1913, he declared 'parliament is sovereign except when I
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think it should not be: in which case those who think it should remain sovereign are fools'
■ It is because if he retains his previous position on the Constitution, the new Home Rule Acts can easily repeal the 1880 Acts of Union, a move that he detested.
■ He also abandoned the doctrine of popular sovereignty by announcing in 1893 that the 'hereditary House of Lords, and not the newly elected
House of Commons, truly represented the will of the nation'
Bogdanor (2009): 'We are now in transition from a system based on parliamentary sovereignty to one based on the sovereignty of a constitution, albeit a constitution that is inchoate, indistinct and still in large part uncodified'
Lord Steyn in the R(Jacson) v Attorney General (2006) declared that 'the classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was,
can now be seen to be out of place in the modern United Kingdom'
The new constitution
● 'Reforms have been introduced in a piecemeal, unplanned and pragmatic way'
(Bogdanor 2009)—the lack of a written constitution means that constitutional reforms go unnoticed.
● Constitutional changes are introduced for political expediency, not derived from any intellectually coherent view of the constitution
○ Flinders and Curry (2008): constitutional reforms had no 'ideological foundation or rational underpinning'
○ Bruce Ackerman (2018): 'The past half-century has demonstrated that British
Prime Ministers—from Edward Heath through Harold Wilson through
Margaret Thatcher through Tony Blair through David Cameron—have systematically subordinated long-run issues of constitutional design to shortrun issues of party management in the House of Commons.'
● David Marquand: 'It is very British, this revolution. It is a revolution without a theory. It is the messy, muddled work of practical men and women, unintellectual when not positively anti-intellectual, apparently oblivious of the long tradition of political and constitutional reflection of which they are heirs, responding piecemeal and ad hoc to conflicting pressures—a revolution of sleepwalkers who don't quite know where they are going or why.'
● People are uninterested in the reforms: 'we are as a nation notoriously uninterested in our constitution' (Bogdanor 2009)
○ During the 1997 election campaign, the British people were asked by MORI to rank the importance of various issues, the constitution ranked the last out of 14 options
○ 'The British people remain obstinately concerned with the substance of politics, not its procedures' (Bogdanor 2009)
The constitution first came back to the forefront of British politics on the issue of Northern
Irish Home Rule. The Westminster model wouldn't work there because the conflict was
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between two (religious) communities. Innovations are applied to N Ireland e.g. PR,
referendum (N. Ireland border poll in 1973) and Bill of Rights that would be resisted in the rest of the UK.
McLean (2010) suggests that there are three categories of statutes that gives the statute a claim to entrenchment
● a statute that embodies an agreement previously reached in a treaty (e.g. the Acts of
Union 1706/7; the European Communities Act 1972; and perhaps the Human Rights
● a statute that (purports to) amend the rule of recognition for future statutes (e.g. the
Parliament Act 1911);
● a statute that has been endorsed by referendum (e.g. the Scotland Act 1998;
Government of Wales Act 1998; Northern Ireland Act 1998).
Philip Norton believes that EC membership, devolution and the passage of the Human
RIghts Act 1998 are the three principle changes to the constitution.
Entry in the European Community
● Threaten parliamentary sovereignty
○ The supremacy of European law. Laid out in the 1964 case Costa v ENEL:
unilateral act incompatible with the concept of the Community cannot prevail.
Transfer of power away from domestic legal system
■ Factortame case (1991): in 1988, Parliament passed a Merchant
Shipping Act that restricts the right of foreign-owned vessels to fish in
British waters (targeting Spanish fishing-boat companies registered in the UK). the ECJ ruled that it was contrary to Community law
○ Doctrine of direct effect. Laid out in the 1962 case Van Gend en Loos. ECJ
decided that the Treaty of Rome not merely an intergovernmental agreement,
but a new legal order of international law that bind not only the Member
States but also their nationals
○ Powers of the Community institutions strengthened at the expense of national institutions of the member states, esp with the extension of QMV in the
Council of Ministers. To an extent, that implies that the executive can make laws for the UK by making decisions at European level (although the
Parliament has given assent under the terms of the 1972 European
■ Some member states circumvent this problem by the requirement for a mandate from the parliament for the executive to make decisions at the European level. This is not the case in the UK.
● How the Parliament coped with this
■ House of Commons--European Scrutiny Committee. Considers legislative proposals from the Commission, Green and White Papers of the Commission, draft recommendations, resolutions and draft of the annual budget.
● It sifts through the documents. In 2008-09, less than 8% of those documents were recommended for debate in one of the
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three European Committees (each deals with different policy areas). And in the same period, only 4 documents were debated on the floor of the House.
● A useful means for leverage is the 'scrutiny reserve'. Ministers are expected to withhold agreement in the Council of Ministers if any proposal has not been scrutinised by the committee or discussed by the House.
■ House of Lords--European Union Committee (former European
● Each sub-committee covers a different policy area. The subcommittee can decide to undertake an inquiry, which might involve simply a letter to the relevant minister, or a substantial inquiry that involves oral and written evidence and a report to the House.
● Reports from inquiries can be sent to the House for debate,
usually about 15 a year.
● The work of the Lords EU Committee is seen as being a good contribution to debates.
Communications with MEPs
■ There are regular meetings of the members of the European Scrutiny
Committee and the Lords EU Committee with UK MEPs. In 2008-09 for example, EU's response to the financial crisis, the Lisbon Treaty and the Commission 2009 work programme were topics of discussion.
Yellow card procedure
■ Introduced under Lisbon Treaty. National parliaments can vote to decide whether legislative proposals conflict with the principle of subsidiarity. If one-third of the national parliaments submit opinions,
the EU institution has to review the proposal. If more than half the
Member States submit opinions, then the institution must justify its decision to the Council and the European Parliament, each of which can strike down the proposal (the orange card procedure)
■ The seasonal workers directive was the closest national parliaments got to triggering the review procedure (both Houses submitted an opinion)
■ The scope of the yellow card procedure is very narrow. The principle of proportionality (the means should be proportionate to achieving the stated goal) is not included.
● Mark Elliot: 'The legal sovereignty of the Westminster Parliament is thus forced to confront the political reality of a territorial constitution in which power has — in every practical respect — been irreversibly dispersed.'
● Key facts
○ Scheme of devolution recommended by the Kilbrandon Commission in 1973.
The Labour govt of 1974-9 failed to create a Scottish parliament and a Welsh assembly. The Labour govt of 1997 succeeded. Trigger was SNP spectacular success in the two general elections of 1974. PR would help preserve the
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