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The English Historical Constitution
Cambridge University Press
9780521878142 - The English Historical Constitution - Continuity, Change and European Effects - by J. W. F. Allison
Excerpt
1
Introduction
Change, not continuity, attracts attention. Constitutional rules that remain unchanged and practices that continue become familiar, are readily taken for granted and easily pass unnoticed. Legislative constitutional changes, in comparison, are easily noticed, and their scope and frequency are ready causes of controversy.
The constitutional changes of recent decades have been frequent, far-reaching and ongoing. The European Communities Act 1972 provides for the domestic application of Community law, and the courts have accepted the implications of its primacy for statutes of the Westminster Parliament.1 Further domestic, legal and political responses to the continuing process of constitution-building in the European Union2 are to be expected. The government’s constitutional modernisation programme since the Labour Party came to power in 1997 has resulted in devolution legislation, the Human Rights Act 1998, statutory provision for a Supreme Court and substantial modifications to the office of Lord Chancellor, inter alia.3 Legislative and other official initiatives, further, in response to the security fears following the attacks of 11 September 2001 and later atrocities have constitutional implications for the exercise and interpretation of humanrights,4 the scope of which will become clearer in years to come.
The extent, form and frequency of the many changes have called into question the common and longstanding assumption5 that the constitution is characterised by gradual or evolutionary change and, further, that it remains unwritten. Certain statutes, such as the European Communities Act 1972 and the Human Rights Act 1998, have, arguably, acquired or are acquiring special constitutional status6 and are sufficiently comprehensive in important areas to afford some basis for Vernon Bogdanor’s recent conclusion that the constitution is ‘half way’ to codification by ‘piecemeal means’.7 Such a conclusion would certainly be significant and might be tempting were it not for implicit doubts and overt reactions.
The doubts are implicit in the conclusion that the process is only piecemeal and half-complete – ‘a unique constitutional experiment’8 – thus quite unlike introducing a written or codified constitution, both in process and outcome. The doubts would seem to arise from the continuing lack of the necessary consensus within government and the real governing political will actually to bring about a written constitution as well as from caution about what may be a typical preoccupation with recent legislative change to the exclusion of earlier change9 and barely-noticed continuity. A few years ago, Bogdanor himself rightly recognised the lack of the required political will or consensus to go further and that it ‘is of course far too early even to speculate with any degree of detachment upon the likely consequences of the extensive programme of constitutional reform which began in 1997’.10 A change in the political priorities of government might occur,11 but the change would need to be substantial and enduring for the massive task of introducing a written constitution to be undertaken and successfully completed.
The overt reactions to many of the reforms that have occurred have been to their substance and particularly to the manner in which they have been brought about. Although, in substance, many have been successfully promoted in the cause of modernisation,12 Eurosceptic reactions have been longstanding and the most apparent. Reactions to the reform process itself have been more recent but, for present purposes, are of similar constitutional significance, suggesting constitutional impropriety and going well beyond criticism13 of governmental failures to deliberate and consult. One early reaction took the form of scathing criticism of the manner in which a ‘constitutional revolution’ was being brought about: ‘It is the muddled, messy 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 the heirs, responding piecemeal and ad hoc to conflicting pressures – a revolution of sleepwalkers who don’t know quite where they are going or quite why.’14 In particular, the measures of the government first to establish a new Department for Constitutional Affairs, abolish the Lord Chancellor’s office and create a Supreme Court, announced by press release as ‘far reaching reforms’ – ‘a substantial package of … reform measures’ – and in relation to a cabinet reshuffle, and then to concede that the office should be retained although substantially modified,15 were events in quick succession that have provoked charges of ‘constitutional vandalism’ and of reforms drafted ‘on the back of an envelope’.16 These charges from within the legal profession have followed others of ‘constitutional change under anaesthetic’ and of a checklist approach17 to reform, coming from at least a few working within the media, none the less significant for the metaphoric language in which they have been couched. The ‘Just do it!’ approach of earlier programmes of privatisation appears to have been adopted for the reform of long-established institutions of government.
That the reform process itself has somehow been going seriously wrong has been clear from the overt reactions and perhaps a more general unease, but what exactly has been going wrong and whether wrong for purely political and/or constitutional reasons remain questions without clear answers. In contrast to onerous amendment provisions of a written constitution, we have the legacy of Dicey’s assertion that, in the exercise of Parliament’s legal sovereignty ‘one law, whatever its importance, can be passed and changed by exactly the same method as every other law’.18 It is still commonly echoed today,19 indeed amplified by the critical recognition20 that the parameters of government activity can be changed even without recourse to Parliament where it takes place, not under statute, but under common law, as is often the case. The reforms accord with the orthodox Diceyan emphasis on the legal changeability of constitutional law through the exercise of Parliament’s sovereignty. The negative reactions they have provoked, however, are reasons to question the sufficiency of that orthodoxy, and, to the extent they suggest constitutional impropriety, the implicit understanding of the constitution by which the reform process has been improper. In a context where the constitution is still commonly assumed to be, or characterised as, evolutionary, many of these reactions are plausibly interpreted as normative expressions of sentiment still derived from traditional understandings of the constitution and to which they still owe much of their appeal.
The chapters below are written in recognition of the doubts about the many constitutional changes of recent decades and the reactions to them. Through a reformation of traditional understandings, their primary purpose is to elaborate upon a conception of a historical constitution to which change, continuity and their relative significance are central. Their secondary purpose is to respond to the Eurosceptic reaction by duly recognising both domestic peculiarities and past and present effects of European legal developments – national and supranational – upon this historical constitution.
This book is about change and also about continuity over a long period. Although various recent statutes and cases have each been heralded as the most important since the Reform Acts of the nineteenth century or since Entick v. Carrington of the eighteenth,21 it provides an overview that does not focus on each of them. It is necessarily limited in scope. It does not, for example, deal with the important legal changes that are occurring in response to the recent and continuing threats to security. It also does not deal with devolution but reflects the implications22 of devolution for what an author of a work on the constitution can reasonably claim. Because of the constitutional significance of the devolution legislation of 199823 and, to Scotland in particular, of the Treaty of Union of 1706 and consequent Acts of Union of the English Parliament of 1706 and of the Scottish Parliament of 1707, I only suggest an understanding of the constitution from an English perspective. The historical constitution in this book’s title is English in perspective and, as such, will vary in relevance or applicability elsewhere in the United Kingdom.
The approach I will take is explained in Chapter Two. In subsequent chapters, I will use it to consider the Crown as the constitution’s longstanding institutional centrepiece, the increasingly-invoked separation of powers and Dicey’s twin pillars of the constitution – parliamentary sovereignty and the rule of law. I have been necessarily selective of subject and focus, and, in so far as I have been selective, the approach to the selections I have made is significant and itself in special need of justification.
2
A historical constitutional approach
Amidst competing notions of the constitution and various approaches to understanding it or addressing related concerns, any notion or approach requires justification. For much of the twentieth century, Dicey’s analytical approach, if not necessarily the content of his analysis, predominated but, I will suggest, proved significantly problematic. In this chapter, I advocate a historical constitutional approach through a reorientation of Dicey and in relation to other approaches that are prominent in current constitutional debates.
Dicey’s analytical approach
In Law of the Constitution, Dicey described his approach to the subject of constitutional law in considerable detail. He famously presented his professorial duty as that of an expounder:
At the present day students of the constitution wish neither to criticise, nor to venerate, but to understand; and a professor whose duty it is to lecture on constitutional law, must feel that he is called upon to perform the part neither of a critic nor of an apologist, nor of an eulogist, but simply of an expounder; his duty is neither to attack nor to defend the constitution, but simply to explain its laws.1
He expressly distinguished the legal from the historical view of the constitution. He relegated the historical view in legal study so that lawyers might properly study ‘the law as it now stands’ and not ‘think so much of the way in which an institution has come to be what it is, that they cease to consider with sufficient care what it is that an institution has become’.2 Dicey’s approach was not simply intended for the study and teaching of law. He suggested the significance of his analytical method in his Law and Opinion in England:
A Court, when called upon to decide cases which present some difficulty, is often engaged – unconsciously it may be – in the search for principles. If an author of ingenuity has reduced some branch of the law to a consistent scheme of logically coherent rules, he supplies exactly the principles of which a Court is in need. Hence the development of English law has depended, more than many students perceive, on the writings of the authors who have produced the best text-books.3
Dicey’s approach was intended to benefit the student, the lawyer and the judge.
Influenced by the scientific rationalism of the nineteenth century, Dicey aspired to a scientific approach in pursuit of a consistent and logically coherent scheme of legal rules and principles. His method4 was that of observation and objective description through the composition of sets or categories and the division or subdivision of their components. He presented his law of the constitution as a formal scheme of sets and distinctions: between one set of laws ‘in the strictest sense’ and a second set of rules consisting mainly of conventions; between parliamentary sovereignty and the rule of law as the constitution’s two fundamental features; between the positive and negative dimensions of parliamentary sovereignty; between the rule of law’s three meanings, and so on.5
Dicey’s analytical method was confounded by three problems – fidelity, ossification and insularity. First, a method that pretended only objectively to describe a scheme of rules and principles could not prescribe or maintain fidelity to that scheme. The constitution’s appeal or its source or sources of fidelity were left analytically obscure or indistinct, as was the normative force of a judicial or other claim that official conduct be constitutional or unconstitutional. The problem of their obscurity was to increase as the constitutional complacency that Dicey could still presuppose6 was variously undermined during the twentieth century.7
Secondly, Dicey’s analytical scheme of sets and distinctions was rendered static by his relegation of the historical view and consequent focus on constitutional form, not formation. It was imposed upon an evolving constitution at a relatively arbitrary and fleeting moment – the moment of analysis. In proportion to the considerable extent Dicey’s analysis remained constant in necessarily multiple editions of the same analytical textbook, enjoyed influence or acceptance and continued to be applied, it ossified or encapsulated a changing constitution.
Thirdly, focusing on constitutional form, not formation, Dicey’s analytical method neglected the dynamic interaction of political communities and their respective constitutional forms. Dicey knew much of other jurisdictions, and frequently referred to them, but his references were principally illustrative and served an insular purpose. He expressly used federalism in the USA, for example, as an opposite with which to illustrate and emphasise English unitarianism through the exercise of Parliament’s central and supreme legislative power.8 He similarly used French droit administratif to demonstrate how it is different from, indeed incompatible with, the English rule of law.9 In these and numerous other examples, he presented other jurisdictions, not as actual or potential sources of influence, but as anti-models with which to demonstrate the peculiarity of the sets of rules and principles and accompanying distinctions that made up his analytical scheme of the English law of the constitution.
A descriptive analytical legacy
The many constitutional changes10 since the publication of the tenth edition of Dicey’s Law of the Constitution – changes in government and governance, the impact of European Community law, devolution, the passing of the Human Rights Act 1998, doctrinal shifts in the meaning and significance of parliamentary sovereignty and the rule of law etc – have all aggravated the problems of fidelity, ossification11 and insularity, described above. They raise two related questions. First, what remains of the sets of rules and principles and accompanying distinctions encapsulated in Dicey’s analytical scheme to serve as a distinctly legal and/or political object of fidelity? Secondly, how do remnants of Dicey’s analytical scheme remain both relevant and still peculiarly English in a constitution subject to increasing European legal influence?
Many explicit and implicit current references to the constitution, betraying the loss of much of its appeal and normative force, are Dicey’s descriptive analytical legacy. The ‘unwritten constitution’ is a simple negative and strictly inaccurate descriptive term in common discussion. The constitution is variously described in constitutional law texts, often in unflattering terms. In one, it is depicted as ‘a jumble of diffuse statutes and court rulings, supplemented by extra-legal conventions and practices’.12 In another, it is a spider’s web – ‘a more subtle and varied network of relationships [than previously understood] between laws or rules of different kinds and from different sources’ – in the process of being spun with Parliament at its centre.13 It is understandably said to be an unclear and unreliable basis for public debate on constitutionality or a judicial ruling that official conduct is ‘unconstitutional’,14 a term described elsewhere as having ‘no defined content’.15
© Cambridge University Press
