2012-13 Tarun Khaitan

Constitutional Law You will be studying constitutional law during your first term in Oxford. Before you arrive please complete the vacation work below. This work introduces you to some of the foundations of constitutional law. It also raises the difficult question of what the term ‘constitution’ means in a country without a document called ‘The Constitution’. All of the texts referred to are included with this sheet. Please do not purchase any of these books yet. You will be given a copy of Bradley and Ewing when you arrive at College. You may wish to purchase other texts once you are familiar with the reading for the term and with the different styles of the texts. Vacation Work You should find copies of the following texts enclosed:

• Turpin and Tomkins, British Government and the Constitution (CUP 7th ed 2011) Ch 1

• Bradley and Ewing, Constitutional and Administrative Law (Longman 15th ed 2011) Chs 1 & 2

• Bogdanor, The New British Constitution (Hart 2009) Ch 1 • Tomkins, Public Law (OUP 2003) Ch 1 • King, The British Constitution (OUP 2007) Ch 1

Please read these texts carefully, make notes and answer the questions below. There is not necessarily a single right answer to any of these questions. Your answers to these questions should take no more than 6 typed sides (or the equivalent in handwriting) in TOTAL. You will find that some questions require longer answers than others. When you arrive at Oxford, please hand it in at the lodge for my attention. Please also bring a copy of the assignment to the first class in Week 1 (time and place to be announced later). Questions

1. What is a constitution? Must it perform any particular function or have any particular content in order to be properly described as a constitution?

2. Does the UK have a constitution? If so, where might it be found?

3. What are the main characteristics of the UK constitution?

4. What does it mean to say something is unconstitutional? What consequences

might flow from an unconstitutional act?

5. Should the UK adopt a written (or codified) constitution?

6. What is the difference, if any, between constitutional law and politics?

What Is a ‘Constitution’? Chapter:(p. 1 ) 1 What Is a ‘Constitution’? Source:The British Constitution Author(s):Anthony King Publisher:Oxford University Press DOI:10.1093/acprof:oso/9780199576982.003.0001

Abstract and Keywords This chapter describes the British constitution. The British constitution is said to be different from the constitutions of most other countries because it evolved very gradually over time. The constitution of the United Kingdom (UK) did not develop in a single, straight line due to the breaks in line during the first quarter of the 12th century. Because of the effect of the First World War, the territorial uprightness of the UK was disrupted when most of Ireland seceded from the union.

Keywords: British constitution, United Kingdom, 12th century, First World War, territorial uprightness, Ireland, union

There was a time, not so long ago, when almost every commentator on the British constitution was agreed on one thing: that Britain’s constitution, unlike the constitutions of most other countries, had evolved very gradually over time. No radical break with the country’s constitutional past had occurred since the seventeenth century—that is, since the Civil War, the ascendancy of Oliver Cromwell, the Restoration of Charles II in 1660 and the Glorious Revolution of 1688. Alfred Lord Tennyson famously wrote that Britain was

A land of settled government,

A land of just and old renown,

Where Freedom slowly broadens down

From precedent to precedent.

Down the years less poetic observers echoed Tennyson’s refrain. Thus, writing of the constitution, A.V. Dicey at the end of the nineteenth century:

It was the fruit not of abstract theory but of that instinct which…has enabled Englishmen, and especially uncivilised Englishmen, to build up sound and lasting institutions, much as bees construct a honeycomb…

Thus Sidney Low at the turn of the last century:

We are not concerned with a solid building, to which a room may be added here, or a wing there; but with a living organism, in a condition of perpetual growth and change, of development and decay.

Thus Sir Ivor Jennings soon after the Second World War:

The building has been constantly added to, patched, and partially re-constructed, so that it has been renewed from century to century; but it has never been razed to the ground and rebuilt on new foundations.

Thus, more recently, one of modern Britain’s most distinguished constitutional commentators, Vernon Bogdanor:

[This country’s constitutional] progress has been evolutionary, unpunctuated by revolutionary upheaval or foreign occupation.1

(p. 2 ) Claims such as these—that British constitutional development from the seventeenth century to the twentieth was continuous and virtually uninterrupted—were, of course, to some extent exaggerated. The United Kingdom’s constitution did not develop in a single, straight line. There were breaks in the line, notably during the first quarter of the twentieth century. In 1911 the House of Lords was shorn of the bulk of its powers, with Britain’s legislature abruptly becoming, in effect, unicameral. A few years later, in the aftermath of the First World War, the territorial integrity of the United Kingdom was disrupted when most of Ireland seceded from the union. Constitutional historians have paid oddly little attention to this momentous event, even though, in terms of land mass, though not of population, it was equivalent to Germany losing Bavaria or France losing the whole of both Brittany and Normandy.

Nevertheless, despite these qualifications and others that could be made, it has to be acknowledged that the conventional wisdom was broadly right. Continuity rather than discontinuity was the hallmark of British constitutional development. A reborn W.E. Gladstone, had he found himself restored to the premiership in, say, the 1960s or 1970s, would have found himself inhabiting a familiar constitutional landscape, even though, of course, almost everything else in his environment would have changed beyond recognition. Gladstone would have welcomed the abolition of the House of Lords’ veto, and he would probably have welcomed the fact that the United Kingdom was now shot of southern Ireland (though he would certainly have regretted the specific circumstances of the rupture). But in the 1960s and 1970s the prime minister, whoever he was, still presided over the cabinet in 10 Downing Street, and the cabinet was still the central locus of authority in the political system. The House of Commons still met in the Palace of Westminster, and government ministers still dominated the House, while at the same time having to heed the views of their parliamentary supporters. The courts of law still retained their independence of the government of the day, while at the same time usually deferring to the government of the day’s superior wisdom (provided only, of course, that ministers acted within the law). Executive authority nearly a century after Gladstone’s time was still centralized in Whitehall, and no one seriously called in question the idea that sovereignty in the United Kingdom resided ultimately—and solely—with the Queen in Parliament.

Many of these physical landmarks still stand. So do many of the political practices associated with them. But, put bluntly, the thesis of this book is that the long era of constitutional continuity portrayed in the old textbooks is now ended, that continuity and gradual evolution have given way to radical discontinuity and that the traditional British constitution—the constitution of Clement Attlee, Harold Macmillan and Edward Heath as much as (p. 3 ) of W.E. Gladstone and Benjamin Disraeli—no longer exists. Most politically aware Britons are

familiar with the main individual changes that have taken place in recent decades, but relatively few seem to have grasped that, if these changes are not considered individually but are instead considered all together, they have substantially transformed Britain’s governing arrangements. It is scarcely too strong to say that the constitution of the early twenty-first century bears less resemblance to the constitution of the 1960s than the constitution of the 1960s did to that of the 1860s. The fact that some institutions and practices have changed so little only serves to conceal the fact that so many of them have changed so much. Parts of Britain’s constitutional edifice, including some of the most visible parts, remain intact, but the edifice as a whole is, for all practical purposes, a new building.

Most of the chapters that follow seek to draw out the essential features of the old building, to identify the factors that led—and are still leading—to its reconstruction and to offer an account of the new constitution’s principal characteristics.However, before we discuss these large matters, we need to start by considering what a ‘constitution’ in the political sense of that word might be thought to be.

I The word ‘constitution’ will be used from now on to refer

to the set of the most important rules and common understandings in any given country that regulate the relations among that country’s governing institutions and also the relations between that country’s governing institutions and the people of that country.

A definition along these lines may strike some readers as uncontroversial, perhaps even platitudinous, but in fact such a definition, however innocent-seeming, carries a number of important implications, some of which are obvious, some of which are less so.

In the first place, a definition of this kind is wholly neutral in moral and political terms. It says nothing whatsoever about whether a given country’s constitution is good or bad or about whether it is worth commending or condemning. A country’s constitution is simply the set of rules and common understandings that currently exists. In this sense, almost every country has a constitution, and to say that a given country has a constitution is to say nothing else about that country save possibly that it is not a so-called ‘failed state’, a state whose governmental structures have effectively collapsed. Germany under the Nazis and the Soviet Union under the Communists both (p. 4 ) had constitutions on this definition, however abhorrent they may have been. Germany, Russia and Britain today also have constitutions in this sense, and whether their constitutions are admirable or otherwise is, in this context, neither here nor there. The academic lawyer J.A.G. Griffith was using the notion of ‘constitution’ in this strictly non-evaluative manner when he asserted flatly that, in the British case, ‘the constitution is what happens’.2

Even given this definition, there may, of course, be some debate about which are a country’s ‘most important’ rules and common understandings. There is bound to be, on the one hand, a core constitution, the changing of which everyone would agree was a real constitutional change, and, on the other hand, elements of a country’s political practices that might or might not be regarded as strictly constitutional and the changing of which might or might not therefore be regarded as constitutional change. The rule in the United Kingdom that free and fair elections should be held every few years is undoubtedly one of the country’s most

important rules, as is the rule that the leader of the majority party in the House of Commons normally becomes prime minister. At the other end of the scale of importance are, for instance, the rule requiring the Speaker of the House of Commons to wear a black gown when presiding over the House and the rule (or is it merely a custom?) requiring someone called the Gentleman Usher of the Black Rod to knock at the door of the Commons chamber before summoning members of the Commons to hear the Queen’s Speech in the Lords chamber. The abolition of free and fair elections—or the decision that they should be held only once in every ten years—would universally be regarded as an important constitutional change; any relaxation of the rules relating to gown-wearing and door-knocking obviously would not. In between, however, are more difficult cases, ones about which reasonable people can reasonably differ. For example, between 1918 and 1928 the franchise in the UK was at long last extended to women on the same basis as men. The change was undoubtedly desirable on the grounds of both equity and equality and was undoubtedly important to large numbers of women; it marked a fundamental change in the way in which women were viewed, and viewed themselves, in British society. But was it, strictly speaking, a constitutional change? Probably not, but the point could easily—and reasonably—be argued the other way.

The rest of this book will largely steer clear of this kind of disputed—or, at any rate, disputable—territory and will concentrate on aspects of the British political order that almost everyone does regard as being genuinely constitutional. Change in the indisputably constitutional domain is change that has ramifying consequences: it alters a country’s entire governmental system. Only changes on that scale will be considered here. This approach means omitting detailed consideration of several matters that are widely and (p. 5 ) customarily, but perhaps not rightly, regarded as constitutional, for example the monarchy’s political role. Focusing on the constitution—that is, on rules and conventions—also means omitting consideration of many other features of political life, notably the specific power relations that currently prevail in the UK (or that have prevailed in the past). A book on the constitution cannot, in other words, sensibly be a book about the whole of the UK’s political life. A full account of the power relations that prevailed in the 1970s would have had to include an account of the political role of the trade unions, but in the 1980s the Thatcher government marginalized the unions and the UK power balance shifted accordingly. Similarly, the media, and in particular the press, have constituted a large term in Britain’s power equation since at least the 1960s and certainly since the 1990s (and arguably long before that). But it would be odd, even perverse, to treat either the trade unions a generation ago or the media today as though they were ‘governing institutions’. They are, rather, entities that seek to influence Britain’s governing institutions.

Another implication of the definition of ‘constitution’ offered here relates to the business of whether a country’s constitution is ‘written’. It is often said that, whereas most other liberal democracies have written constitutions, the British constitution is unwritten. But, as many commentators have pointed out, that particular formulation, while it contains an element of truth, is wildly misleading. What Britain lacks is not a written constitution but a codified Constitution, a Constitution with a capital ‘C’, one that has been formally adopted in accordance with some legal process generally acknowledged as appropriate to the purpose.

The truth is that constitutions, as we are using the term here, are never—repeat, never—written down in their entirety, so the fact that Britain lacks a capital-C Constitution is far less important than is often made out. On the one hand, large chunks of Britain’s small-c constitution are written down. On the other, large and important chunks of other countries’

capital-C Constitutions are not written down. Moreover, many other countries’ capital-C Constitutions contain provisions that, far from being among those countries’ most important rules and common understandings, border on the comic.

All of these points are easily illustrated. Even before the radical constitutional changes of recent years, most of them solidly based on statute, the United Kingdom’s constitutional arrangements included a large number of provisions that, while not codified or formally labelled ‘constitutional’, were certainly written down. The most important of these included the Act of Settlement 1701 (which, among other things, legally established the independence of the judiciary), the Act of Union 1707 (which incorporated Scotland into the United Kingdom), the Parliament Act 1911 (which abolished the House of Lords’ veto power and reduced the maximum duration of (p. 6 ) parliaments from seven years to five), the Government of Ireland Act 1920 (which granted de facto independence to southern Ireland while creating quasi-independent institutions in the north), the Parliament Act 1949 (which further reduced the powers of the House of Lords) and the European Communities Act 1972 (which effectively gave European Community law precedence over UK domestic law). Arguably, this already long list—all of it dating from prior to 1997—could be extended to include Magna Carta 1215 (which established that the powers of the king could not be allowed to be unlimited), the Bill of Rights 1689 (which further restricted the king’s powers and extended those of parliament), the Representation of the People Acts 1832–1928 (which transformed the UK from a parliamentary oligarchy into a parliamentary democracy), the Ministers of the Crown Act 1937 (which legally recognized the post of leader of the opposition and provided its holder with a salary), the Crown Proceedings Act 1947 (which deprived government departments of their immunity from being sued in contract and tort), the Life Peerages Act 1958 (which negated the principle that, apart fromlaw lords and bishops, only hereditary peers could sit in the House of Lords), the Referendum Act 1975 (which, although at the time restricted in scope, nevertheless established the principle that UK-wide referendums on important issues could be held) and the Single European Act 1986 (whose implementation in Britain impinged, and impinges, on Britain’s constitution by expanding the use of qualified majority voting in the European Union). Important provisions of almost all of these acts are still in force. To describe Britain’s constitution, against that background, as unwritten is simply bizarre. Britain’s constitutional legislation runs to hundreds of pages. What Britain’s constitution is is uncodified, not both written down and formally gathered together all in one place.

That said, much of Britain’s constitution is, indeed, unwritten. The role of the prime minister is not provided for by statute, the cabinet is not mentioned anywhere in statute law, and a Civil Service Act regulating the relations between civil servants and their political masters has yet to be passed. Similarly, although the institutions and practices of local-government are subject to innumerable statutes, no single statute defines the role of local government in Britain’s overall constitutional structure. However, the fact that much of Britain’s constitution is unwritten does not distinguish the UK from most other countries, including countries with codified, capital-C Constitutions. To take an obvious example, the US Constitution nowhere explicitly empowers US courts to strike down federal statutes and other acts of government on the grounds that they are unconstitutional (as distinct from merely illegal). Those who wrote the US Constitution did assume that the courts in the new system would play such a role, but they felt no need, perhaps for that very reason, to draft a formal constitutional provision along those lines. They thought a (p. 7 ) ‘common understanding’ rather than a formal rule would suffice. And they were right. Led by Chief Justice John Marshall, the US Supreme Court in Marbury v. Madison in 1803 struck down a clause of the

Judiciary Act 1789 on the grounds of its unconstitutionality. The court did not thereby amend the US Constitution, but it certainly amended the US small-c constitution (albeit along lines that had already been anticipated).

More generally, almost no country with a capital-C Constitution provides in its Constitution for one of the most significant features of any constitutional order: the country’s electoral system. The US Constitution makes no provision for the simple-plurality, first-past-the-post electoral system even though that system is employed almost universally in America. The French Constitution is silent on what should be the nature of that country’s electoral system, thus enabling French lawmakers to change the system frequently, sometimes at short intervals. Article 38 of the German Constitution states blandly that ‘Details [of the electoral system] shall be regulated by a federal law’—and then stops.3 Yet clearly any democratic country’s electoral system constitutes one of the most important rules regulating the relationship between that country’s governing institutions and its citizens. The type of electoral system that a country has profoundly influences the structure of its party system, the particular parties that people choose to vote for, the way in which shares of the people’s vote are translated into parliamentary seats, the ways in which governments are formed and the ways in which, having been formed, they proceed to govern. That is certainly so in the UK, with its simple-plurality electoral system, as well as in all of the other countries just mentioned. The UK’s electoral system—or, more precisely, systems (plural)—will accordingly be considered at some length in a later chapter.

Not only do capital-C Constitutions quite commonly omit to cover matters of high constitutional importance: they quite commonly contain provisions relating to matters that are of no constitutional importance whatsoever. The aforementioned German Constitution solemnly declares that ‘All German merchant vessels shall constitute a unitary merchant fleet.’ Even better, the Austrian Constitution contains the following inconsequential provision, which might well have been drawn from an operetta libretto:

The coat of arms of the Republic of Austria (the Federal coat of arms) consists of an unfettered single-headed, black, gilt-armed and red-tongued eagle on whose breast is imposed a red shield intersected by a silver crosspiece. On its head, the eagle bears a mural crown with three visible merlons. A sundered iron chain rings both talons. The right holds a golden sickle with inward turned blade, the left a golden hammer.

For its part, the Constitution of Iceland insists that ‘the President of the Republic shall reside in or near Reykjavik’ while the Constitution of Greece (p. 8 ) states that ‘alteration of the contents or terms of a will, codicil or donations as to the provisions benefiting the State or a charitable cause is prohibited’.4 Capital-C Constitutions are not always the Solon-like documents they are sometimes made out to be.

None of this is to say that codified Constitutions do not matter. Of course they do—or may. The fact that the US Constitution provides that ‘the President shall be Commander in Chief of the Army and Navy of the United States’ gives the US president enormous power in times of international conflict, as the wars in Korea, Vietnam and Iraq amply demonstrated. It is merely to say that the observer needs to keep his or her eye on the Big Picture—a country’s small-c constitution—and not be over-concerned with what happens to be written down and what happens not to be. In the specific case of Britain, although the country is far from acquiring a capital-C Constitution, more and more of its small-c constitution, as we shall see, has come to be written down in recent years.

II It is worth exploring the implications of this distinction between constitutions and Constitutions a little further, if only in the interests of avoiding confusion.

Because the UK has no capital-C Constitution, it has no legal mechanism designed specifically for the purposes of bringing about changes in its constitution. All upper-case Constitutions contain provisions for their own amendment—usually provisions that call for quite complicated procedures outside the usual norm and requiring some kind of super-majority to be obtained—but a Constitution that does not exist cannot be amended in that sense. Indeed the British constitution is never ‘amended’; it is only changed. It can be changed either as a result of changes in politicians’ common understandings (often called ‘conventions’) or as a result of changes in ordinary statute law. In theory, the UK parliament could decide to distinguish between constitutional legislation and other kinds of legislation just as it now distinguishes between money bills and other kinds of bills. But it has never moved to make any such distinction, and, even if it did, the legislation embodying the distinction would itself be ordinary legislation and therefore subject to amendment and repeal. The result is that the British constitution is in many ways remarkably easy to change, and sometimes politicians and others do not even notice that constitutional change—as distinct from other kinds of change—is taking place. That which has not been specially flagged up may pass unnoticed; or, more precisely, its true significance may pass (p. 9 ) unnoticed. We shall encounter several instances of such unnoticed or littlenoticed change—creeping change, so to speak—in later chapters.

One consequence of the fact that Britain does not have a Constitution and that no distinction is made in British law between specifically constitutional matters and others is that the word ‘unconstitutional’ has no precise meaning in the UK, if indeed it has any meaning at all. A British government or a British minister may behave illegally; everyone knows what that means. But what would it mean to say that the government or an individual had behaved unconstitutionally? Certainly the word in this kind of context would have no generally understood meaning—it would probably amount to no more than a vague term of abuse—and in fact ‘unconstitutional’ and its cognates seldom feature in British political discourse. A rare instance occurred during the Westland affair in 1985–86 when the secretary of state for defence, Michael Heseltine, resigned from Margaret Thatcher’s cabinet, protesting, among other things, that Thatcher as prime minister had violated the norms of constitutional government in refusing to allow the full cabinet to discuss properly the future of the Westland Helicopter Company. But, although everyone knew what Heseltine had in mind (Thatcher’s whole style as prime minister), the specific charge that she had behaved unconstitutionally scarcely resonated among his fellow politicians and the media, and little more was heard of it. The simple truth was that the relevant constitutional norms, in so far as they existed, had not been spelt out anywhere and that, in any case, no authoritative tribunal existed to determine whether they had been violated. In the UK, as in other countries that lack capital-C Constitutions, the whole idea of constitutionality—and therefore of unconstitutionality—necessarily remains in limbo.

To put the same point another way, it is striking that in countries with capital-C Constitutions those Constitutions usually act as normative and legal standards. They constitute benchmarks against which the actions of governments and individuals can be tested. The Constitution in such countries can be ‘violated’ just as the ordinary law can be ‘broken’. Constitutional

courts usually exist in such countries precisely in order to determine whether in specific instances the country’s Constitution has been violated. In the United States, the federal Supreme Court—in effect, America’s constitutional court—is one of that country’s pivotal political institutions. In the UK, by contrast, the constitution, not being a Constitution, is seldom understood as constituting any kind of normative or legal standard. The constitution in the UK is not in any sense a benchmark. It is simply, for better or worse, a state of affairs—‘what happens’. Those who protest—as people occasionally do—that the British constitution has been violated are not saying anything precise. They are merely expressing disgruntlement with some new state of affairs.

(p. 10 ) One important question, however, arises at once. If the analysis offered here is broadly correct, what—in the UK as distinct from in the United States—is ‘constitutional law’? Textbooks on constitutional law are written and published in the UK, and there are people in the UK who call themselves constitutional lawyers. But, in the absence in Britain of a codified Constitution, what constitutes the textbooks’ and the lawyers’ subject matter?

The short answer is that, in the UK setting, constitutional law resembles the constitution itself. That is, it encompasses those aspects of the constitution that take the form of statute law, but also those aspects that are strictly customary and conventional. Constitutional law in the UK, like the constitution itself, has no clearly defined boundaries, and its scope, as a result, is as broad or as narrow as the individual constitutional lawyer chooses to make it. One of the most widely used textbooks in the field happily acknowledges that in the absence of a codified Constitution, ‘an author’s selection of topics has to be conditioned by what he personally regards as relevant or instructive’.5 In this particular instance, the authors’ choice of topics ranges from a general discussion of constitutions (much along the lines set out above) to detailed consideration of parliamentary privilege, subordinate legislation, tribunals and enquiries, the parliamentary ombudsman, immigration, deportation and national emergencies. In other words, the authors—perfectly reasonably from their point of view—cast their net much more widely than it is being cast here. Lawyers have a duty to go where the law takes them, and in the case of constitutional law it can take them in a wide variety of directions.

Constitutional law is likely to have, not least, a substantial normative element. Constitutional lawyers typically compare what is with what ought to be. They raise large issues not merely of quotidian legality and illegality but of how a country’s policies and practice conform, or fail to conform, to broad ideals of ‘constitutional government’—by which is meant something much more than merely government that happens to be, or happens not to be, in accordance with some already existing Constitution or constitution.

III Every country, apart possibly from failed states, has a constitution, but not every country enjoys what political theorists since at least the eighteenth century have called constitutional government. A constitution merely describes a state of affairs, which state of affairs may be good, bad or indifferent. Constitutional government denotes a type of political regime constructed in accordance with certain principles or ideals, which principles or ideals are judged (p. 11 ) to be good in themselves and against which a given constitutional regime’s performance can be, and ought to be, judged. The first of the two notions is purely descriptive

(though one can always debate whether the description is accurate or not). The second is normative and potentially judgemental.

The relevant entries in the Oxford English Dictionary help to establish the distinction. That dictionary’s sixth definition of ‘constitution’ (out of a total of eight) reads:

The mode in which a state is constituted or organized; especially, as to the location of the sovereign power, as a monarchical, oligarchical or democratic constitution.6

That definition is similar to the purely descriptive, non-evaluative definition being offered here. However, the dictionary’s seventh definition—which, according to the editors, gradually arose out of the earlier meaning between 1689 and 1789—is considerably broader and refers not merely to institutions but to the ideas underlying them:

The system or body of fundamental principles according to which a nation, state, or body politic is constituted and governed.7

Lord Bolingbroke was using the term in this latter sense in the 1730s when he described a constitution, not merely as an ‘Assemblage of Laws, Institutions and Customs’ but as an assemblage of laws, institutions and customs ‘derived from certain fix’d Principles of Reason’. A few years later Lord Chesterfield hinted at what these fixed principles of reason might be when he boasted that ‘England is now the only monarchy in the world that can properly be said to have a constitution.’8

What Lord Chesterfield meant is clear. He did not mean that no other monarchies had important rules and common understandings that ordered their affairs. Rather, he meant that England (or Britain) was the only monarchy in the world whose important rules and common understandings ensured that the monarch’s powers were strictly limited: that the king was so constrained by his ministers, by parliament and by the courts that he could not, even if he wished to, become a tyrant or oriental despot. In other words, he was not merely a monarch but a ‘constitutional monarch’. It was this grander conception of what having a constitution involved that led Montesquieu in the 1740s to devote a whole chapter of his De L’Esprit des Loix to the English (i.e. British) constitution and that went on to prompt the British to take such pride in their ‘matchless constitution’ during the French Revolution and the Napoleonic Wars and then for the better part of two centuries after that.

The ideas of constitutional government and constitutionalism have formed a central part of Western political discourse throughout the modern era—the discourse of practising politicians as well as the discourse of political theorists. (p. 12 ) The politicians’ and the theorists’ concepts and language have not always been identical, but they have nevertheless had much the same ideas in mind. America’s Founding Fathers set out in 1787 to ordain a constitutional form of government. Germany’s founding fathers did the same in 1948 when they drafted the post-war German Constitution, that country’s so-called Basic Law.

Constitutionalism as a normative political doctrine rests on three pillars. The first, the most explicitly normative, is that one of the principal purposes of any country’s constitution should be to ensure that individuals and organizations are protected against arbitrary and intrusive action by the state. A properly written constitution should provide for the rule of law. It should make it impossible for a country’s rulers to abuse their power—to act wilfully, corruptly and in their own interests rather than those of the nation as a whole. Ideally, it

should also minimize the chances that incompetent individuals, if they come to power, will be able to inflict the consequences of their incompetence on their fellow citizens. A proper constitution is one that seeks to protect the freedom and autonomy of both individuals and organizations. The watchwords of a properly constituted state are—or should be—caution, moderation, restraint and a decent respect for individual citizens and for the citizenry as a whole.

Constitutionalism’s second pillar is concerned specifically with the organization of the state. If the chances of the state’s acting arbitrarily, incompetently or in violation of the rule of law are to be minimized, then there is everything to be said for creating a variety of separate state organs and for dispersing power and authority among them. To concentrate power is to increase the chances that it will be misused. The most efficacious means of preventing such misuse is to ensure that power is not concentrated. Hence constitutionalism’s emphasis on ‘checks and balances’ and ‘the separation of powers’ (a phrase better rendered as ‘separated institutions sharing powers’). The constitutionalist advocates the existence of a strong legislative assembly to act as a check on executive power and insists, in particular, on the independence of the judiciary from both the executive and the legislative branches of government. The constitutionalist may also press for the parcelling out of power, not only among the various organs of central government but away from central government to the periphery: to regional, state, provincial and/or local governments. The constitution of practically every modern state embodies these tenets of constitutionalism—not least the independence of the judiciary—in one form or another.

The third pillar of constitutionalism concerns the relations between the state, however constituted, and the body of citizens. Obviously the rule of law is meant to act as the principal restraint on the state in its relations with citizens; in a constitutional state, the government is supposed to be bound (p. 13 ) by the law just like everybody else. But constitutionalism also recommends that there should be additional safeguards against the exercise of arbitrary and unwarranted state power. There is inevitably controversy about what the nature of those safeguards should be. There is controversy about whether the safeguards should rest on custom alone or should be enshrined in law. There is also controversy about whether the state should be confined within narrow bounds, as libertarians insist, or whether the state should be permitted a considerably wider remit, as socialists and social democrats insist. But at the beginning of the twenty-first century the prevailing view appears to be that there is no substitute in any properly constituted nation for a formally enacted bill of rights. Continuing debate centres, of course, on what precisely those rights should be.

It goes without saying that constitutional government and democracy are not the same thing—and, indeed, that the claims of constitutional government and those of democracy may conflict. What might be called radical or Jacobin democracy requires that the people should govern, full stop. If the rule of law is what the people want, fine. If not, not. If the separation of powers is what the people want, fine. If not, not. In fact, radical democracy points not towards a separation of powers but towards their concentration in the hands of the people or their appointed agents. Similarly, if the people want to entrench human rights in a formal bill of rights, fine. If not, not. And of course the people may change their minds, so that, if the people really are in charge, the very idea of entrenchment falls: under a radical form of democracy, the people, having introduced a bill of rights, are entitled to abolish that same bill at any time. In practice, of course, every liberal democracy has arrived at some sort of accommodation between the claims of democracy in its radical form and the claims of constitutional government. But the underlying tensions remain. They are perhaps most clearly

exemplified in the United States, whose political arrangements embody both an extreme formof constitutionalism, manifested in its codified Constitution and the activities of the Supreme Court, and also, at the same time, a wide range of often extreme democratic claims, manifested in the use in many American states of referendums, popular initiatives and mechanisms for the recall of unpopular office-holders. As already indicated, this book is mainly concerned with how and why the British constitution has changed in recent years rather than with whether the changes that have taken place have been desirable or undesirable. Even so, we will need to address later on the question of how far the recent changes meet, or fail to meet, the competing claims of constitutionalism and democracy.

One final point in connection with the idea of a constitution is worth making. Note that the dictionary definition cited above referred to ‘the system or body of principles’ (italics added) according to which a body politic is (p. 14 ) constituted and governed. Similarly, Lord Bolingbroke referred to an assemblage of laws, institutions and customs ‘derived from certain fix’d Principles of Reason’ (italics again added). The implication of both formulations is that a constitution, in the proper sense of the term, should not be merely a higgledy-piggledy agglomeration of laws, institutions, customs, common understandings, conventions or whatever but should possess a certain overall coherence, a certain internal logic. A constitution, in this sense, should hang together. It should make sense and be able to be rationally expounded. This is another consideration that we shall come back to later.

Chapter 3 will give an outline account of the traditional British constitution—the one that existed before the radical changes of recent years—but, before we proceed to that point, there is a lot to be said for pausing to engage with the opinions of a number of long-dead scholars and journalists who, in works still widely regarded as classics, expounded their views of the nature of the British constitution as they saw it in their own time.

Notes: (1.) Alfred Lord Tennyson, ‘You Ask Me, Why, Though Ill at Ease’, reprinted in Christopher Ricks (ed.), The Poems of Tennyson (London: Longmans, 1969), 490 ; A.V. Dicey, Lectures Introductory to the Study of the Law of the Constitution (London: Macmillan, 1885), 3 ; Sidney Low, The Governance of England (London: T. Fisher Unwin, 1904), 2 ; Ivor Jennings, The Law and the Constitution, 5th edn (London: University of London Press, 1959), 8 ; Vernon Bogdanor, ‘Britain: The Political Constitution’, in Vernon Bogdanor (ed.), Constitutions in Democratic Politics (Aldershot, Hants.: Gower, 1988), 54 .

(2.) Quoted in Peter Hennessy, Whitehall (London: Secker & Warburg, 1989), 306.

(3.) Basic Law for the Federal Republic of Germany, Article 38, para. 3 (Bonn: Press and Information Office of the Federal Republic, 1986).

(4.) These quotations are drawn from the 2006 online translations of the constitutions published on the various countries’ official websites: German Basic Law, Article 27; Austrian Constitution, Article 8a, para. 2; Icelandic Constitution, Article 12; Greek Constitution, Article 109, para. 1.

(5.) Stanley de Smith and Rodney Brazier, Constitutional and Administrative Law, 8th edn (Harmondsworth, Middx.: Penguin, 1998), 6 .

(6.) ‘Constitution’, Oxford English Dictionary, 2nd edn, Vol. 3 (Oxford: Oxford University Press, 1989), 790 .

(7.) Ibid .

(8.) Bolingbroke and Chesterfield are quoted as illustrations of the Oxford English Dictionary’s definition 7 (see n. 6 above).