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Course of Study: Constitutional Law Supervision
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Title: Public Law
Name of Author: Adam Tomkins
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PUBLIC LAW
PUBLIC
ADAM TOMKINS
ADAM
TOMKINS
Millar Professor
John
Professor of
of Public
Public Law
Law
John Millar
Glasgow
University of
University
of Glasgow

OXFORD
oxroRD
TINIVERSITY
UNIVERSITY PRESS
PRESS

OXFORD
UNIVERSITY PRESS

Great Clarendon Street, Oxford OX2

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Published in the United States
by Oxford University Press Inc., New York
Adam Tomkins 2003

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British Library Cataloguing in Publication Data

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Library of Congress Cataloging in Publication Data
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ISBN 0-19-926077-X
7 9 10 8 6

Typeset in Ehrhardt
by RefineCatch Limited, Bungay, Suffolk
Printed in Great Britain
on acid -free paper by
Biddies Ltd, King's Lynn, Norfolk

forl..aurm

ls

II

On Constitutions
Constitutions
On
ENGLISH PUBLIC
PUBLIC LAW
LAW
ENGLISH
This book
book isis concerned
concerned with
with public
public law
law in
in England,
England, and
and before
before we
we go
go any
any
This
as well
well to
to say
say something
something about
about what
what this
this means
means and
and why
why itit
further itit isis as
further
is important.
important. The
The principal
principal unit
unit in
in which
which and
and through
through which
which political
political
is
the State.
State. This
This isis more
more clearlv
clearly the
the case
case in
in some
some parts
parts
power isis exercised
exercised isis the
power
of the
the world
world than
than itit is
is in
in others.
others. The
The State
State of
of Australia,
Australia, for
for example,
example,
of
of
currently looks
looks aa lot
lot more
more stable
stable and
and secure
secure than
than does
does the
the State
State of
currently
Afghanistan. Closer
Closer to
to home,
home, States
States in
in Western
Western Europe
Europe are
are changing
changing with
with
Afghanistan.
remarkable speed.
speed. Individual
Individual States
States have
have internal
internal tensions,
tensions, with
with claims
claims
remarkable
of secession,
secession, autonomy,
autonomy, or
or independence
independence (Spain
(Spain and
and
for varying
varying degrees
degrees of
for
the Basque
Basque country,
country, and
and the
the United
United Kingdom
Kingdom and
and Northern
Northern Ireland
Ireland are
are
the
but the
the most
most obvious,
obvious, and
and bloody,
bloody, examples).
examples). Equally,
Equally, all
all States
States in
in Europe
Europe
but
of the European Union
Union are
are
which are,
are, or which aspire to be,
be, members
members of
which
new ways
ways of
of pooling
pooling or sharing
sharing aspects of
of their sovereignty
sovereignty (or
learning new
learning
power) with each
each other, and with
with a complex central European
European authority
authority
power)
The State is
is a
a variable and
and changing commodity.
commodity.
based in Brussels.
Brussels. The
based
In neither
neither politics nor law is it any longer the sole player (if
(if ever it was),
In
and the
the varied challenges
challenges of regionalism, of internationalism,
internationalism, and
and of
and
have subiected
subjected the
the State
State to
and unprecedented
unprecedented
to multiple and
globalization have
of both
pressures. Yet
constitutional worlds of
pressures.
Yet the State remains key to the constitutional
law
law and
and politics, and it is with public law as it operates in the context of
the
here.
are primarily concerned here.
we are
the State
State that we
Kingdom. The
The particular State which
the United Kingdom.
which concerns us is the
union of
United
asymmetrical union
is an
an asymmetrical
State. It is
is aa complicated
complicated State.
Kingdom is
United Kingdom
four component
England, Wales, Scotland, and Northern Ireland.
component parts: England,
The
The legal and politis dynamic,
dynamig not static. The
the union is
The asymmetry
asymmetry of the
parts are
are
ical
component parts
the component
within the
indeed within
and indeed
between and
ical relationships
relationships between
changing.
significantly
of significantly
effect of
had the
the effect
has had
change has
recent change
most recent
The most
changing. The
the Scotland
Scotland
augmenting
of the
parts. By
virtue of
By virtue
the parts.
between the
differences between
the differences
augmenting the
executive'
_-\ct
its own
own executive,
and its
Parliament and
has its
its own
own Parliament
now has
\ct 1998
rg98 Scotland
Scotland now
these Scottish
Scottish
headed
moreover, these
But moreover,
Minister. But
First Minister.
own First
its own
headed by
by its

dil

dr

Public Law
Law
Public

tnsrl.Jriuns
3re not
not
~....,
tio - are

scaled-do$-n
versions of
caled-down versions
of their
their UK
uK counterparts.
counterparts. The
The
5rr-,ttish
Parliament
is composed
composed differently
differentlv from
:0 "-h Parliament is
from the
the United
United Kingdom
Kingdom
Perliament. its
its electoral
electoral system
svstem isis different,
different, its
its powers
powers are
Parliament
are different,
different, and
and
its
internal
orsanization
and operation
operation are
i- inter nal organization and
are different.
different. The
The way
way in
in which
which

the Firs
Firstt ..\linister
appointed isis different
different from
the
-\linister isis appointed
from the
the wav
wav in
in which
which the
the
UK's
Prime
appointed, so
so that
rhar even
L K's Prime .\ilinister
even though
though England
-\Iinister isis appointed,
England and
and
Scotland share
share aa single
single monarch,
monarch, her
her powers
powers are
Scotland
are different
different in
in the
the two
two
just Scotland
territories.
It
is
not just
Scotland which
which isis different
territories. It is not
- further differences
different-further
differences
are readily
readily identifiable
identifiable in
in the
the cases
cases of
of Wales
Wales and
are
and of
of Northern
Northern Ireland.
Ireland.
This
causes
public lawyers
lawvers aa problem.
problem. The
The phrase
phrase'public
This causes public
'public law'
law-' invites
invites
comparison with
with 'private
law'. What
What isis the
the distinction
comparison
distinction between
between the
'private law'.
the two?
two?
This isis aa difficult
dilficult and
and contentious
contentious issue,
issue, to
to which
This
which we
we shall
shall return,
return, but
but
for the
past two
the past
two centuries
centuries or
or more,
more, one
one distinction
distinction between
for
public and
between public
and
private law
law in
in the
the United
United Kingdom
Kingdom has
has been
been its
its jurisdictional
private
scope.
iurisdictional scope.
Private
lawyers have
have tended
tended to
to concern
concern themselves
themselves with
Private lawyers
with the
the English
English law
law
of contract,
contract, or
or the
the Scots
Scots law
law of
of delict,
delict, whereas
whereas public
public lawyers
of
lawyers have
have
concerned themselves
themselves with
with the
the British
Britisfr constitution.
constitution. This
concerned
This book
book does
does
differently. While
While comparative
comparative examples
examples will,
will, where
differently.
where appropriate,
appropriate, be
jurisdictions (including
drawn from
from other jurisdictions
(including other
other jurisdictions
drawn
within the
iurisdictions within
United Kingdom),
Kingdom), our
fbcus will be
our focus
be on
on England,
England, and
United
and on
on English public
law: This is for
fbr two main reasons. The first is modesty
modesty-with
law.
- with the growing
changes in
public law
in public
law as
as between
between the
the component
component parts
parts of the
changes
the United
Kingdom, English
English lawyers
lawyers with
with no
no training
training in
in or
Kingdom,
or direct
direct experience of
law; or of devolved Welsh
government, should be wary of continuwelsh government,
Scots law,
ing the
(not to
lazy (not
the lazy
to say arrogant, even
even imperialist) assumption
ing
assumption that the
English can
can with
with authority
authority equate
equare themselves
themselves with
English
with and
and speak
speak for
British.
the British.
But the
the second reason
reason is,
is, for
for this
this book,
more pressing. Relative
But
book, more
Relative to
its constituent
constituent parts,
parts, the
the United
United Kingdom is
young entity.
its
is aa young
entity. It
It came
into existence only in
in 1800,
r8oo, with the Act of Union between Britain and
into
Ireland. Britain itself had been in existence at that point for less than a
century, having
having been created only in 1707
of Union between
ryo7 with the Act of
Englandl
England l and Scotland.
Scotland. Yet, as we shall see, many of
of the central
central and most
I

I 'L,ngland'
'England' here
here means England and Wales. Fitting
Fitting Wales into the account is a problem.
problem.
Wales
Wales was
was rather
rather unceremoniously
unceremoniously overtaken by England
England in r536.
1536. Unlike
Unlike Scotland, Wales
has
has no separate
separate legal
legal svstem,
system, and
and English law applies. However, since the Government
Government
of
of \dhles
Wales Act rgg8,
1998, !trhles
Wales has enfoyed
enjoyed a form of administrative
administrative or executive devolution
devolution
which
which may
may in time create a separate
separate Welsh public law identity.
identity. For
For the
the time
time being
being though,
though,
Wales
Wales will
will continue
continue to be regarded, however
however unsatisfactorily,
unsatisfactorily, as subsumed
subsumed within
within English
English

public
public law:
law.

On
Cttnsii:tn:i
On COl/stil!~-J

important
public law
lan ilia
thrt ',r,
pillars of
important pillars
of the
the public
erected
before
1707,
and
are
in
tha
t his
hi,.r
in
that
are
erected before t7o7, and
public
not
British.
While
this
t',
ths
British.
S'hile
public law,
law, and
not
and
the
history
of
law,
it
is
a
principal
coO[
principal
cont.r
law,
it
is
a
history
of
the
English
adequ::.cl
public law
be adequa
law cannot
cannot be
English public
of
history.
of historv:

WHAT
TI T
ARE COr\"
CO\STIT
WHAT ARE

We
into English
English lr
inquiry into
our inquiry
We commence
commence our
the
nature
of
constitutions.
The
qu
-ti
que:tl,,r.
The
the nature of constitutions.
be
answered
very
simply.
Constitutio
Constitutions
very
simply-.
be answered
" n
provide
instituti,,
the institu
of the
provide for
for the
the creation
creation of
relations
institutions "an.l.:;
relations between
between those
those institution
the
relations
between
those
institurio-:s
instirutir,n-.
those
the relations between
govern.
of
these
can
briefly
be
,.
ct,ns:
be co
govern. Each
can
brieflv
Each of these
The
institutions
of
the
State
norm"
normallr
The institutions of the State
- "
legislatures
arra\ 0,-,4.
law; an
an array
legislatures to
to make
make the
the law;
Cabinet,
civil
service,
local
authori
ti
-rt
i
authoritic.local
service,
Cabinet,
and
a
judiciary
to
determine
authorita
.
authoritati'
and a fudiciary to
or
lau: Additio
Additiona-l
or implementation of the law.
there to be
a
Head
of
State
(such
as
as aa m,- i
be a
to
be
some
form
of
defence
of
the
Stal
the
defence
to be some form
secret
intelligence
and
security
en"i
ic.-.'serr
and
securitv
secret
does
not
necessarily
have
to
create
or
ppr have
create
necessaril.v
does
above
institutions,
but
all
constitutio
- r
constitutions
above institutions,
such institutions.
In addition to merely creating
in=r
creating the ins
will
also
make
some
provision
for
r
=
provision
for
rezul
ivill also
institutions.
if for
for example..
example. thc''
institutions. What
What if,
matter
of
public
policy.
Let
up
policy.
Let us
us supp-'-..
matter of public
elected on
a
manifesto
commitment
on a manifesto comminnefl[ tr-,
abortions may be lawfully performed t.,r~
pregnancy. The legislature,
legislature, hos-ever.
howeYer. rr.ipregnanc-y.
and passes
passes aa law which
which permits a \\'omtn
worn
during her pregnancy. The State's
State hi:lr
hi=-'
abortions are contrary
contrary to what it prcx-lai
proc .
to life
life and
and are
are therefore unlau-tul.
unlawfuL n,-'
no J
to
woman's
pregnancy
is.
Which
institu
.
instituti,-,
s'oman's
last
word
in
the
event
that
they
di-<a'l
that ther
last word in the
L

Constitutions
On Constitutions

33

important pillars
pillars of
of the public
public law that we shall explore
explore in this book were
were
important
1707, and are in that historical
historical sense, aspects of
of English
erected before t7o7,
about
public law, and not British. While this book is in no sense a work about
of law,
law, it is a principal contention
contention of
of the argument here that
the history
history of
law cannot be
be adequately
adequately understood without a
a sense
sense
English public
public law
English
of
history.
of history.

WHAT ARE CONSTITUTIONS

CONSTITUTIONS FOR?
FOR?
WT{AT
We commence our
our inquiry
inquiry into
into English public
public law
law with an examination
examination of
We
nature of
of constitutions. The
The question,
question, what
what are constitutions
constitutions for, may
the nature
Constitutions perform three main tasks:
tasks: the-v
they
be answered very simply. Constitutions
creation of
of the institutions
institutions of
of the State; they
they regulate
regulate the
provide for the creation
regulate
relations between those institutions and one another; and they regulate
between those
those institutions and
and the people
people (citizens) they
the relations between
of these can briefly
briefly be considered
considered in turn.
govern. Each of
institutions of
of the State normally
normally include a legislature
legislature or series of
The institutions
legislatures to make
make the law; an
an array
of executive
executive agencies (government,
(government,
affay of
legislatures
Cabinet, civil service, local authorities, regulators) to administer the law;
Cabinet,
authoritatively disputes about the meaning
meaning
and a judiciary to determine authoritatively
of the law. Additionall-v,
Additionally, aa constitution
constitution may
may provide for
implementation of
or implementation
there to be aa Head of
of State (such as
as a monarch
monarch or president)
president) and for there
form of defence of the
service,
the State
State (armed forces, police service,
to be some form
secret intelligence and
services, and
and so
constitution
forth). A constitution
so forth).
and security services,
does
of all of
of the
creation of
create or provide for the creation
necessarily have to create
does not necessarily
institutions, but all constitutions
constitutions make provision for at least some
above institutions,
such institutions.
institutions.
In addition to merely creating the institutions of State, a constitution
constitution
will also make some provision
provision for
the relations between the
for regulating the
institutions.
over a
for example,
they all
all appear
appear to
to disagree over
institutions. What
if for
example, they
What if,
policy. Let
matter
Let us
that aa State's
State's government is
matter of public policy.
us suppose that
elected
law such
such that
to reform abortion
abortion law
elected on
on aa manifesto
manifesto commitment
commitment to
abortions
be lawfully performed only during the first
first trimester of
may be
abortions may
pregnancy.
rejects the
pregnanc-y. The
legislature, however, rejects
the government's proposal
The legislature,
and passes a law which permits a woman to have an
an abortion at any time
during her
declares that all
The State's
highest court then
then declares
her pregnancy. The
State's highest
abortions are contrary to what it proclaims to be the fundamental
fundamental right
to
no matter
matter how
how far
far progressed the
to life
life and
and are
therefore unlawful,
unlawful, no
are therefore
woman's pregnancy
have the
to have
has the authority to
pregnancy is.
is. Which institution has
last
answer this
disagree? Constitutions
Constitutions answer
last word
in the
the event
event that
that they
they disagree?
word in

ffi

"dllr

cli

44

Public Law

question in a variety of
wal-.
of ways, but all constitutions answer it in some way.
The
The constitutional
constitutional order of
America is such that it is
of the United States of
of America
the US Supreme
however,
Supreme Court which has the last word. In English law, however,
it
- which enjoys
The rule
it isis the
legislature-Parliament-which
enjoys this
this status.
the legislature-Parliament
status. The
which confers this status on Parliament
Parliament (which many would regard as the
most important,
important, or basic, legal rule of
of English public law) is known as the
'sovereignty of Parliament'. We
detail in
We will
will discuss
discuss this rule in
in more detail
chapter 4.
Parliament,
addition to the doctrine of the sovereignty
sovereignty of Parliament,
4. In addition
principles which
English
public law
law contains
further principles
which seek
seek to
to regulate
English public
contains further
relations between
as the
The doctrine known as
the institutions of State.
State. The
between the
rule of law
authority
law provides that the executive must have
have prior legal authority
and 6).
before it acts
law is
is discussed
discussed further in chapters 3
acts (the rule of law
3 and
governThe
principle of ministerial
that the
the governministerial responsibility
responsibility provides that
The principle
ment's
responsible and
and accountable
accountable to
ment's ministers
ministers are
are constitutionally
constitutionally responsible
powers and
(see chapter
Parliament (see
and notions
notions of
The separation
chapter 5).
separation of powers
5). The
federalism
federalism are further examples
examples of the kinds of
of tools which constitutions
may use to regulate
regulate the legal and political relations of the institutions
institutions of
the State.
State.
Finally, constitutions
constitutions also
also say something
something about the people over whom
these institutions rule. A constitution
legislature (or
constitution may provide for the legislature
part of
elected by the people (or
of it) or for the executive (or its head) to be elected
some of the people) who live in (or are citizens
citizens of) the State.
State. Similarly, a
constitution may provide that there are
the State
are certain things
things which the
State
may not do to its people, certain rights, sometimes called fundamental
fundamental or
civil or human rights, which the people enjoy as against the State, which
act as limitations
lawfully do. So that, for example,
limitations on what
what the State
State may lawfully
the government may wish to govern free from criticism,
criticism, but the law may
provide that while certain
certain forms of
of especially violent or racist speech may
'right' to freedom
be moderately
moderately regulated,
regulated, by and large the people have aa'right'
of
political speech, such that the government
government is simply
of speech, especially political
going to
to have
have to
to put up with the
the inconvenience
inconvenience of being criticized:
criticized: no
matter what the government's electoral or other mandate is, no law may
ma_y
does not
be passed which eliminates free
free speech. Again, aa constitution does
be
have
protect freedom
for it
it to
constitution, but all
have to
to protect
freedom of speech
speech for
to be
be aa constitution,
constitutions
will have
have something to
to say
about citizenship, about
about the
constitutions will
say about
citizens
extent of democracy, and
and about the rights and
and freedoms which citizens
can expect to enjoy.
enioy.
What
perfectly adequate functional
What we
we have
have sketched out
here is
is aa perfectly
out here
analysis of what constitutions are for,
do. But this analysis
analysis
for, of what they do.
feels
missing, it seems,
feels very flat and
and rather prosaic. There is something missing,

On COllstitLJ:l
Constttt,:;.'

\\'hat is mr,
from an account as dull as this. What
thrrc
tions, in addition to performing
performing the three
.'.-,
also
embody
something
of
a
nation'a
nation's
of
also embody something
famous account of what aa constitution
constirution r-r\-Lscr-'u
eighteenth
:0<..:
politician. Yeighteenth century Tory politician,

ue s~
sp'eak -By constitution
constitution we mean, whenever we
custon-ll

assemblage
and cusro~
institutions and
laws, institutions
assemblage of laws,
fired oil
ciples
';
ciples of reason, directed to certain fi:~ed
'rhrt
n'hich thcto which
the
according to
general system,
system, according
the general
2
governed.
governed.2

in
There are
are at least two elements present i;
ing from the functional account offered ah
;'a'
constitutional
constitutional laws and institutions are .;"cr
oof
f reason
and
are
directed
to
certain
fixe..;"
to
reason and are
.iti;
Enlighttaside
aside the now rather out-moded Enli~
getu.
reason are fixed, what Bolingbroke is ge
g*-''
have =
not only have functions, they also ha\-e
r isi'-';
indeed shaped by values, by certain
certain yisi
\\T
ideas(or public interest),
by
political
ideas~
interest),
is
cannot understand
consdrution ~
understand what a constitution
p:,1
*'hat
and
what
values
it
is
based
on,
and
what
on,
rvhat values is
leeal J
Constitutions
value-neutral leg
Constitutions are not value-neutral
.
as
ditchwater:
they
are
living
represem.2
reprsentf,tl
as
ers
La*r
them and which consume them.
a"wyers
them. L
embarrassing. It is
subject tp~
as if
if our
our subject
is as
larn 15
Lr
regarded as being above all this, that la
also superior to and purer than
than mere prlr
ashame,j
their inhibitions.
be asha
us not
not be
inhibitions. Let us
deeply a political subject.
subiect.
BoiLn
of Eo
The
feature of
The second
second arresting feature
ohith
to
in
words: according
accord,ing to whi h :ik.,
in its
its final
final words:
l-a-ke
uoverned.
Since
the
-e
qot:erned. Since the time of John
John Lx
influen
,
century wrote one of the most
influenria"l
most
TE,'
T
e\-er
composed
in
English
the
e\-er composed in English-the
hu5
at
of
constitutions have been thought
an,l t
citizenn' an
ties to the contract are the citizenry

*.

tcrr aa -:
1734: fo
2r Bolingbroke
in 173-r
words in
Bolingbroke wrote these words
I(F.,,;; i.. -&'
(Cambridge. 190
Bolingbroke's
Political Writings (Cambridge.,
Bolingbrobe's Political

On Constitutions
Constitutions
On

froman
anaccount
accountas
asdull
dullas
asthis.
this. What
Whatisismissing
missingisisthe
thesense
sensethat
thatconstituconstitufrom
tions,
in
addition
to
performing
the
three
main
functions
outlined
here,
tions, in addition to performing the three main functions outlined here,
of
a
nation's
values.
Consider
the
following
also
embody
something
following
the
also embody something of a nation's values. Consider
of what
what aa constitution
constitution is,
is, which
which comes
comes from
from the
the earl-V
early
famous account
account of
famous
eighteenth
century
Tory
politician,
Viscount
Bolingbroke:
eighteenth century Tory politician, Viscount Bolingbroke:
By constitution
constitution we
we mean,
mean, whenever
whenever we
we speak
speak with
with propriety
propriety and
and exactness,
exactness, that
that
By
assemblage
of
laws,
institutions
and
customs,
derived
from
certain
fixed
prinprinfixed
from
certain
derived
customs,
and
institutions
laws,
assemblage of
ciples of
of reason,
reason, directed
directed to
to certain
certain fixed
fixed objects
objects of
of public
public good,
good, that
that compose
compose
ciples
the general
general system,
system, according
according to
to which
which the
the community
community hath
hath agreed
agreed to
to be
be
the
governed.
governed.2

There are
are at
at least
least two
two elements
elements present
present in
in this
this definition
definition which
which are
are missmissThere
The
first
is
the
notion
that
ing
from
the
functional
account
offered
above.
ing from the functional account offered above. The first is the notion that
principles
derived
from
certain
fixed
principles
constitutional
laws
and
institutions
are
consrirutional laws and institutions are deriaed from certain f,xed
of reason
reason and
and are
are di,rected
directed to
to certain
certain fi.xed
fixed objects
objects of
ofpublic
public good.
good. Leavtng
Leaving
of
of
aside
the
now
rather
out
-moded
Enlightenment
idea
that
principles
principles
of
aside the now rather out-moded Enlightenment idea that
reason
are
fixed,
what
Bolingbroke
is
getting
at
here
is
that
constitutions
reason are fixed, what Bolingbroke is getting at here is that constitutions
goals. They
They are
are underpinned
underpinned and
and
not only
only have
have functions,
functions, they
they also
also have
have goals.
not
good
public
of
what
is
in
the
public
good
indeed
shaped
by
values,
by
certain
visions
the
indeed shaped by values, by certain visions of what is
suggesting is that
that you
you
(or public interest), by political
political ideas. What
What he is suggesting
is
for
unless
understand
cannot
understand
what
a
constitution
understand
you
first
cannot understand what a constitution
based on, and what policies it is seeking to promote.
promote.
what values
values it
it is based
what
and dull
as
dust
Constitutions
are
not
value-neutral
legal
documents,
dry
dust
documents' dry
value-neutral
Constitutions are
as
ditchwater:
they
are
living
representations
of
the
politics
which
made
made
politics
which
representations of
are
as ditchwater:
them
and
which
consume
them.
Lawyers
can
find
this
uncomfortable
this uncomfortable and
Lawyers can
consume
them and
It
is
as
if
our
subject
(public
law)
is somehow
somehow to
to be
embarrassing.
our subiect (public law) is
embarrassing. It is as
as
being
above
all
this,
that
law
is
not
only
autonomous
regarded
from
but
autonomous
not
that
regarded as being above
lose
also
superior
to
and
purer
than
mere
politics.
Such
lawyers
need
to
also superior
their inhibitions.
us not be ashamed of it:
it: ours is inescapably and
inhibitions. Let us
their
deeply
a
political
subject.
subiect.
deeply a
The
is contained
account is
feature of Bolingbroke's account
The second
second arresting feature
to be
in
hath agreed to
the community hath
to which
ohich the
according to
words: according
in its
its final
final words:
governed.
seventeenth
late seventeenth
in the
the late
who in
Locke, who
time of John
the time
goaerned. Since
Since the
John Locke,
century
works on
on political philosophy
the most
most influential works
one of the
century wrote one
ever
the Two
of GovernmentGoaernmentTreatises of
Two Treatises
English-the
in Englishcomposed in
ever composed
constitutions
higher-status contracts. The paras higher-status
have been
been thought of as
constitutions have
ties
and the
the governed and
and the
the State: the
are the citizenry and
the contract are
ties to
to the
(ed.),
22 Bolingbroke
Armiage (ed.),
D. Armitage
edition, see
see D.
q34: for
for aa modern edition,
words in
in 1734:
these words
wrote these
Bolingbroke wrote
Bolingbroke's
(Cambridge, 1997),
at 88.
88.
rggT), at
Writings (Cambridge,
Potitical Writings
Bolingbrobe's Political

6
6

Public Law
Law
Public

contracts, the process

process is one of
of bargaining
bargaining,
government. As with regular contracts,
and exchange.
exchange. The parties agree to a future and binding
binding
negotiation, and
if I pay you to do so.
so. They
course of action. You will deliver my milk if
will govern us
us according to these
these constitutional standards
standards if we
we elect
them
to
do
so.
is
deal
make-believe
here,
course.
good
course.
make-believe
here,
of
so.
There
is
a
deal
of
them to
Which one of
of us has been in a position
position of being able to insist on living
under one form of
of government rather than another? The reality is that
we
inherit
our
system
we do
do not
not generally get
get the
our system of government: we
we
chance to construct
construct it for ourselves. Yet under the fiction an important
important
truth lurks: it is the idea that the constitution
constitution is somehow ours. We own
own
it, or at least are stake-holders
stake-holders in it, and can change it, or at least can
advocate that it should
should be changed. Constitutions
Constitutions are not to be regarded
regarded
advocate
as 'out there', imposed
imposed from on high on us mere mortals below. Public
law is not like banking law, a distant and anonymous
anonymous external regulator.
regulator.
Its excitement
excitement is that it promises that we can all be part of
of it, if
if we want
to. Whether the reality of contemporary public
public law lives up to this lofty
Enlightenment
dream
will
be
a
to be
be asked
asked throughout our
question
to
Enlightenment dream will be a
inquiry.
There are numerous values which a constitution might seek to promote, or which a society might seek through its constitution
constitution to promote.
promote.
Democracy
is
perhaps
an
obvious
one:
does
a
constitution
for those
constitution
allow
Democracy
who hold offices of
of political power to be democratically electedl
elected? Does it
allow
the citizenry to
to participate in
the processes of governmental
governmental
in the
for the
allow for
decision-making?
If
so,
does
this
occur
only
rarely,
on
election
days, or
days,
on
decision-making? If sq does
are
there
ways
in
which
the
governed
can
make
an
input
on
on aa more
the governed can make an
are there ways in
frequent basis, through lobbying
lobbying, or attending focus groups, or speaking
at council meetingsi
meetings? Are processes and practices of
of government
government open and
transparent,
or
closed
and
secret?
Away
from
values
of democracy, are
Away
and
transparent,
there other
ways
in
which
the
exercise
of
constitutional
power can
can be
constitutional power
the
other
rendered legitimate? Is heredity a constitutional
value?
Does
the
Punch
Punch
constitutional
more
and Judy
show
of
party
politics
need
to
be
tempered
with
cooler,
mo~e
tempered
Judy
rational
debate,
which
can
come
about
only
through
non-democratic
rational debate,
can come about only through
institutions
constitutional
Lords? Is effectiveness a constitutional
institutions such as the House of Lords?
value?
Does
it
matter
that
the
political
institutions are
not especially
value? Does it matter that the
are not
democratic
of these questions are issues which
democratic as long as they deliver? All of
pages
can usefully be considered as we examine English public law in the pages
that follow.

On Constitu::,,
Constitll i

AND UNWRITTE]
UNWRIT T E:
WRITTEN AND

The first thing

thing anyone learns about
about Eneli-ol
Englis
the constitution is unwritten.
unwritten . Almost
Almo t e\
e e
nitr
Cn.i-c
has a written constitution save the L
goes
goes on about
about whether,
whether, and if
if so rrhr.
why, thrs
U pressing as is generally
generally made out. Indeed.
In dee
tion between written and unwritten coir-iu
co
littlc
distinction actually matters
matters r-err
yery li
The distinction
constitutional distinctions
distinctions (especrel
(es
other constitutional
legal constitutions)
constitutions) which have
have ratler
rather r
legal
first and
and most
most obvious thing to
to t'c
The first
notwithstanding its allegedly
allegedly unliritten
unwri tten nJ_
notwithstanding
the constitution li
is written,
written, somes
some -'her
of the
phrase,
'written constitution'
constitution' reallr
reall y meJns
mear phrase, 'written
constitution is one in
:~
written, or codified, constitution
in aa s:_
tutional rules
rules are
are written
written down
down in
tutional
Constitution' .4
Constitution'.4
The
The reason
reason the
the English
English constifttricrn
consti rutio
Englan "nature
nature is simple. It is because of England's
constitutions do not happen b1-acciden
by accid .
ten constitutions
constitution
deliberately, and in direct
constitution deliberately,
dire t cc,r
event: either revolution
revolution (as in the Unite.l
C nite !
indepen,le
in I993);
r9g3); acquiring
acquiring indepen
or
Russia in
or Russia
in Irgroo,
or \t
Canada in
Canada
in 1867,
I 867, Australia in
900 or
_
conquel
defeat in war, when the victorious conq
(rt itt
\\e.t
tution
in \Y
_ ((
rudon on the defeated enemy (as
inaccuracy to suggest thar
an historical inaccuracy
that thr
inr-asion-<- {,I
England: there were successful inyasio
in I066,
_
ro66, and there was a revolution in It64,:
rn,:xlo
political fashion
creatures of
fashion.. In their moc
creatures
of political
Enlightenrrxce
radicalism of
of the political
the radicalism
political Enlighte
e\pen.
early
earl-v eighteenth
eighteenth centuries. England expe

: Two other
har e unwrir.:
un\r nrtc:l
3 Two
other countries can be said to have
La*s *hxh,
Israel, however
however, has
has aa series
Basic Law
hie
Israel
series of Basic
'lTou~d
. _
New Zealand now has both a Con
C-r-rn*rrur,
rround, and N~w
which codify
codify a significant proportion of 'it c',,t
~I( rggo)
990) ~hich
*
tlr p'pL.a
~ Because
Because of their familiarity we
we will use the
tions', rather than codified and un
consrrruu',
nons'
codified consri
uncodified
phrases are terms of
consrnir,j t
phras~s
of art and are not to be con

On Constitutions
Constitutions
On

~,

WRITTEN AND
AND UNWRITTEN
UNWRITTEN CONSTITUTIONS
CONSTITUTIONS
WRITTEN
.r

Ir
n

r.
It
rt

l
ir
f-

i.

ir
rl
rr
e
,3

d
e

t
h

rl

The first
first thing
thing an-yone
anyone learns
learns about
about English
English public
public law
law isis that
that in
in England
England
The
is unwritten.
unwritten. Almost
Almost every
every other
other country
country in
in the
the world
world
the constitution
constitution is
the
Much agonizing
agonizing
has aa written
written constitution
constitution save
save the
the United
United Kingdom.3
Kingdom. 3Much
has
goes on
on about
about whether,
whether, and
and ififso
so wh-v.
why, this
this matters,
matters, but
but the
the issue
issue isis not
not as
as
goes
pressing as
as isis generally
generally made
made out.
out. Indeed,
Indeed, the
the importance
importance of
of the
the distincdistincpressing
is greatly
greatly exaggerated.
exaggerated.
tion between
between written
written and
and unwritten
unwritten constitutions
constitutions is
tion
The distinction
distinction actually
actually matters
matters very
very little
little and,
and, as
as we
we shall
shall see,
see, there
there are
are
The
other constitutional
constitutional distinctions
distinctions (especially
(especially that
that between
between political
political and
and
orher
legal constitutions)
constitutions) which
which have
have rather
rather more
more significant
significant consequences.
consequences.
legal
and most
most obvious
obvious thing
thing to
to be
be said
said about
about this
this issue
issue is
is that,
that,
The first and
notwithstanding its
its allegedly
allegedly unwritten
unwritten nature,
nature, much
much (indeed,
(indeed, nearly
nearly all)
all)
notwithstanding
the constitution
constitution ri
is written, somewhere. The unhappily
unhappily misleading
misleading
of the
Thus, aa
phrase, 'written constitution'
constitution' reallV
really means'codified
means 'codified constitution'.
constitution'. Thus,
phrase,'written
which all
all the
the principal
principal consticonstior codified, constitution
constitution is one in which
written, or
'The
tutional rules
rules are
are written
written down
down in
in a
a single
single document
document named
named 'The
rutional
Constitution' .4
Constitution'.{
The reason
reason the
the English constitution takes
takes this
this unusual unwritten
The
simple. It is because of
of England's historical
historical development.
development. WritWritnature is simple.
nature
constitutions do
do not happen by accident.
accident. A
A country
country acquires
acquires aa written
ten constitutions
consequence of
of a certain political
political
constitution deliberately,
deliberately, and in direct consequence
constitution
revolution (as in the United States
States in I787,
1787, France
France in 1789,
1789,
event: either revolution
or Russia in
in r9g3);
I993); acquiring
acquiring independence
independence from
from colonial
colonial rule (as
(as in
or
in 1867,
I867, Australia in
in rgoo,
I900, or Nlalaysia
Malaysia in
in I957);
following
Canada in
ry57); or following
conquerors may impose a new constidefeat in war, when the victorious conquerors
rg48). It would be
tution on the defeated enemy (as in West Germany in I948).
an historical inaccuracy
events have not occurred in
inaccuracy to suggest that these events
an
sc and
England:
i, 55
successful invasions (or defeats at war) in
England: there were successful
55 BC
in I066,
in I649.
fi4g. But written constitutions are
ro66, and there was a revolution in
invented in
creatures
of political fashion. In their modern form they were invented
creatures of
the radicalism
political Enlightenment,
Enlightenment, in the late seventeenth and
of the political
radicalism of
early eighteenth
eighteenth centuries. England experienced its moments of greatest

h
Zezland.
33 Two other countries
constitutions: Israel and New Zealand.
be said
said to have unwritten constitutions:
countries can
can be
Israel,
its constitutional
constitutional
now cover
most of its
cover most
Basic Laws
Laws which
which now
has aa series
series of Basic
Israel, however,
however, has
ground,
(1986) and a Bill of Rights Act
has both aa Constitution Act (1986)
ground, and
Zeabnd now has
New Zealand
and New
(1990)
law.
of its
its constitutional
constitutional law.
(rqqo) which codify aa significant
significant proportion of
4 Because
constituand 'unwritten
we will use
use the
the phrases 'written'
familiarity we
'written' and
'unwritten constituof their familiarity
' Because of
tions', rather than codified
codified constitutions,
the understanding that the
on the
uncodified
constitutions, but on
and un
codified and
phrases are
literally.
construed literally.
to be
be construed
and are
are not to
terms of
of art
art and
are terms

88

PublicLaw
Law
Public

political turmoil
turmoil well
well before
before Enlightenment
Enlightenment thinking
thinking took
took hold
hold (indeed,
(indeed,
political
of
the
1640S
and
subsequent
reaction
to itit
to
the
English
political
situation
reaction
and
subsequent
the
r64os
of
political
situation
the English
political
was
one
of
the
principal
inspirations
behind
Enlightenment
political
Enlightenment
behind
principal
inspirations
was one of the
philosophy), and
and was
was not
not therefore
therefore able
able to
to benefit
benefit from
from it.
it. IfIf there
there had
had
philosophy),
in
1700S
rather
than
in
than
been
revolution
in
England,
or
in
Britain,
in
the
late
rather
late
rToos
the
in
Britain,
in
or
been revolution in England,
our
constitution
would
almost
certainly
look
extremely
the
mid
1600s,
look
extremelv
certainly
almost
would
constitution
the mid r6oos, our
different now.
now.
- different
The
oldest
and
probably
the
most
revered
example
in the
the western
western
in
example
revered
most
the
The oldest and probably
of
a
written
constitution
is
that
of
the
United
States
of
America
world
America,
of
States
United
the
that
of
is
world of a written constitution
amendment~
whose constitution
constitution dates
dates from
from 1787
1787 (although
(although significant
significant amendments
whose
were
added
both
in
1791
the
'Bill
of
Rights'
-and
again
after the
the
after
again
Rights'-and
of
were added both in rygr-the 'Bill
aa
even
as
well
as
on
other
occasions).
Yet
even
American
civil
war
in
the
1860s
Yet
occasions).
other
well
as
on
as
r86os
American civil war in the
cursory
glance
at
the
American
constitutional
text
suffices
to
illustrate
illustrate
to
text
suffices
constitutional
cursory glance at the American
that notwithstanding
notwithstanding its
its almost
almost sacred
sacred status
status in
in the
the USA
USA itit does
does not
not
that
of
all
America's
constitutional
rules
nor
even
of
contain
a
complete
code
even
of
nor
rules,
constitutional
America's
contain a complete code of all
all
the
important
ones.
Take
for
example
the
impeachment'
proceedings
pfoceedings
impeachment
the
example
for
all the important ones. Take
1990S: easily
easily the
the most
most important
important
against President
President Clinton
Clinton in
in the
the mid I99os:
against
constitutional
event
in
recent
American
history.s
The
allegations
against
against
The
allegations
history.s
American
constitutional event in recent
an
Clinton
were
that
he
had
enjoyed
extra-marital
sexual
relations
with
an
with
relations
sexual
extra-marital
enioyed
Clinton were that
office
intern
and
had
lied
about
What
the
constitutional
text
tell
text
tell
constitutional
the
does
it.
What
about
office intern and had
To quote
quote its terms
terms in full, Article
Article II
11
us about
about presidential impeachment?
impeachment? To
us
and
4
of
the
Constitution
provides
'The
President,
Vice-President
and
Vice-President
President,
that:
provides
'The
$+ of the Constitution
of the United States, shall be removed from Office on
all civil
civil Officers
Officers of
all
Impeachment for,
for, and
and Conviction of
of, Treason,
Treason, Bribery, or other high
Impeachment
Crimes
and
Misdemeanours'.
text
more questions
questions than
than it
poses more
This
text
Crimes and
an
What
is
a
high
crime
or
having
answers.
with
having
sex
Is
misdemeanour?
answers.
intern
either
of
these?
Were
and
Lewinsky
did
Lewinsky
Monica
and
what
Clinton
Were
intern either of these?
of American constitutional
constitutional law? If
'sexual relations'
relations' within the meaning of
'sexual
so,
was
stating
that
'I
did
not
have
sexual
relations
with that woman', as
relations
have
'I
sq was stating
Clinton
famously
declared,
a
lie?
Is
lying
a
crime
or misdemeanour?
misdemeanour?
crime
a
high
Clinton famously declared, a
These
are
not
small
questions
of
detail.
These
are
the
most
pressing and
small
These are
of
US
constitutional
law
during the
important
questions
that
were
asked
of
important
of
the
1990S,
and
the
constitutional
text
tells
us
nothing
about
whole
nothing
us
tells
text
rvhole of the r99os, and the
5It
It could
rzl SS Ct
Ct 525
Bush va Gore
Gore 121
in Bush
decision in
that the
the Supreme
Supreme Court's decision
525
argued that
could be
be argued

to
following the
to AI
Al Gore following
W. Bush rather than to
to George
George W
presidency to
the presidency
to award
award the
apparently
the Clinton impeachment
zooo has
has overtaken
overtaken the
election of November 2000
indecisive election
apparently indecisive
proceedings
As it
it
history. As
in recent
recent American history.
event in
constitutional event
important constitutional
most important
proceedings as
as the
the most
turns
of the
as is
is here made of
Gore as
made of
of Bush vo Gore
could be
be made
argument could
the same
however, the
same argument
lurns out,
out, however,
question of
Clinton
of
the critical
critical question
was silent
on the
silent on
the constitution
constitution was
text of
of the
the text
impeachment: the
Clinton impeachment:
whe~er
impeachment
the impeachment
not. As
As with the
votes or
lawful votes
or not.
as lawful
to be
counted as
were to
be counted
chads were
hanging chads
whether ?anging
heanngs
the Court.
Court.
of the
the decision
decision of
role in
in the
minimal role
played only
only aa minimal
text itself
itself played
the text
in Congress,
Congress, the
hearings 10
(2000)
(zooo)

On
On Constttur:,":
C OJlstitUff

how
how we
we may
may answer
answer them.
them. What
What this
thi eraml
eXarTI
stitutions
stitutions are
are not
not complete
complete codes
codes capabic
capabl ,,,
questions.
questions. Indeed
Indeed no
no written
written constiltttir-rn
consti tu tion ,
questions,
questions, which
which change
change over
over time,
time, are
are t'-r-l
[
for
for any
any single
single legal
legal instrument
instrument to
to be
be cap:bl,
ca ;l
countries
countries with
with written
written or
or codified
codified consLitu'.t
con ti '-'

codes
codes with
with unwritten,
unwritten, or
or more
more lilelr
likel:-urlr,-r,r
un
constitutions
constitutions are
are (at
(at least
least in
in part)
part) unu'ritten
unwri
There
There isis aa lot
lot of
ofnonsense
nonsense written
written atrc,ut
abo t
particular,
particular, two
two mistakes
mistakes are
are often
often made.
made. Th~
tional
tional content
content with
with constitutional
constitutional form.
for m. Th
Ti
and
and unwritten
unwritten constitutions
constitutions isis one
one of
oftbrn-.fo
the
the question
question of
of what
what the
the constitution
constitution l1-.rL
1
tells
tells us.
us. No
No substantive
substantive consequences
consequences tlc,ri
t 0 tl
tion
unwritten. As
As we
we have
have alreadv
alread\' sctn.
ee :'
tion isis unwritten.
law
law Parliament
Parliament enjoys
enjoys legislative
legislatiye supreirl;.
supre.
eignty
of Parliament).
Parliament). It
It is
is also
also true
true th,:l r
eignty of
But
But itit is
is not
not true
true that
that Parliament
Parliament is
is sovcrcr
o ' ;- unwritten.
You could
could have
have aa *'.i11sn
written er-rn>'
""Le
unwritten. You
clause
clause 'Parliament
'Parliament may
may make
make or unmatc
unmake an
~mav
may overturn
overturn or
or set
set aside
aside anv
any Act
Act of
of ParliaPar . -,.,
unwritten
unwritten constitution
constitution which conferred
confer re su;
: :
rather
rather than on
on Parliament.
Parliament.
The
The second
second frequent
frequent mistake is
is to sar
sa_ ' '-,1r"
.'
constitution
constitution means that the constitution
constitutio x--:.. :;
careful explanation.
explanation. If
If the constirution
constitu tion is' r
found, and how do we
we know when n'e
we hare
ha
the constitution
constitution is
is to be
be found in aa r"arien
"arie ,-,
constitutional s'
multiple
are constitutio
multiple sources. There are
are constirur:
secondary legislation; there
there are
cons - ,.,
hile (,:
lax, uwhile
develop constitutional common law
develop
all 0of q
far so
unexceptional: all
statutes. So
So far
so unexceptional:
statutes.
criminal trr
mue of English crimin
would be equally true
multiplr,.
law enjoy
enioy aa multi
\ll areas
of English
English law
areas of
:\11
constirutional
However, in
in the
the constitutio
codffied. However,
codified.
. '
ruler 'ri
non-legal rules
when the
the non-legal
complicated when
complicated
is not entirely
entirelr 1leea,
added. The constitution is
'" =
you defin~
lern
(particularly if
if you
define laabout law
law (particularly
about
cases).
and cases
statutes and
concerned only
only with statutes
concerned
). .\,'
(as all
philosoph-r (as
all cr
political philosophy
from political
derived from
derived
:1

- ,=-

On Constitutions
Constitutions
On

g9

how we
we may
may answer
answer them.
them. What
What this
this example
example shows
shows is
is that
that written
written conconhow
of answering
answering all
all constitutional
constitutional
stitutions are
are not
not complete
complete codes
codes capable
capable of
stitutions
questions. Indeed
Indeed no
no written
written constitution
constitution could
could ever
ever be.
be. Constitutional
Constitutional
questions.
which change
change over
over time,
time, are
are too
too varied
varied and
and too
too unpredictable
unpredictable
questions, which
questions,
for any
any single
single legal
legal instrument
instrument to
to be
be capable
capable of
of answering
answering them
them all.
all. Even
Even
fbr
countries with
with written
written or
or codified
codified constitutions
constitutions need
need to
to supplement
supplement those
those
countries
In this
this sense
sense all
all
codes with
with unwritten,
unwritten, of
or more
more likely
likely uncodified,
uncodified, rules.
rules. In
codes
constitutions are
are (at
(at least
least in
in part)
part) unwritten.
unwritten.
constitutions
There is
is aa lot
lot of
of nonsense
nonsense written
written about
about the
the unwritten
unwritten constitution.
constitution. In
In
There
particular, two mistakes
mistakes are
are often
often made.
made. The first is to confuse
confuse constituconstituparticular,
tional content
content with
with constitutional
constitutional form. The distinction
distinction between
between written
written
rional
is one of
of form, not
not of
of substance.
substance. It
It speaks to
and unwritten
unwritten constitutions
constitutions is
and
of what the constitution
constitution looks like, not of
of what it actually
actually
the question of
the
tells us.
us. No
No substantive
substantive consequences
consequences flow from
from the
the fact
fact that
that the
the constituconstitutells
is unwritten.
unwritten. As
As we
we have
have already
already seen,
seen, itit is
is true
true that
that in
in English
English public
public
tion is
enjoys legislative
legislative supremacy
supremacy (the doctrine
doctrine of
of the soversoverlaw Parliament enioys
larv
unwritten.
eignty of Parliament). It is also true that the constitution is unwritten.
Parliament is sovereign because
because the constitution is
But it is not true that Parliament
have a written constitution which contained the
the
un written. You could have
unrvritten.
~ lause 'Parliament
'Parliament may make
make or unmake any law whatsoever and nobody
nobody
clause
overturn or set
set aside
aside any Act
Act of
of Parliament' just
just aS
as you could
could have an
may overturn
mav
un written constitution
constitution which conferred supremacy
supremacy on a Supreme
Supreme Court
unwritten
ather than on Parliament.
Parliament.
rather
second frequent
frequent mistake is to say that the unwritten nature
nature of
of the
The second
:onstitution means
means that the constitution
constitution is flexible.
flexible. This requires some
some
r-onstitution
careful explanation.
explanation. If
If the constitution
constitution is not written, where is it to be
t:reful
:o
und, and how do we know when we have found it? The answer is that
tound,
constitution is to be found in aa variety
variety of
of places: it is a constitution
constitution of
- e constitution
rhe
;nultiple
constitutional
constitutional statutes; there is constitutional
multiple sources. There are constitutional
secondary legislation; there
some of which
cases-some
are constitutional
constitutional casesthere are
"econdary
Je,eIop
constitutional
develop constitutional common
common law, while others interpret constitutional
na tutes. So
unexceptional: all
what has
has been suggested here
all of what
fiarutes.
far so
so unexceptional:
So far
ouId be
be equally true of
law..
could
criminal law, contract law, or family law
of English criminal
it is
.ill
none of it
sources: none
law enjoy
enioy aa multiplicity of sources:
\ll areas
English law
areas of English
:od
ifi ed. However,
become more
context things
things become
in the
the constitutional
constitutional context
However, in
--odified.
:omplicated
order are
rules of the
the constitutional
constitutional order
:,:mplicated when
the non-legal rules
when the
ldded.
exclusively
added. The constitution is not entirely legal. Public law is not exclusively
.:.rLnut
out law
mean that
that itit is
to mean
you define
law narrowly
narrowly to
(particularly if you
define law
law (particularly
ncerned only with statutes and cases). As well as being based on ideas
:uncerned
.:en
yed from
(as all
are), the
the English
all constitutions are),
political philosophy (as
lerived
from political

ro

10

publicLaw
Law
Public

OnOrtC Con-;t:::t:t
orlSltj' :1

constitutionalso
alsorelies
reliesonona anumber
numberofofpolitical
political(that
(thatis,is,non-legal)
constitution
non_legal)
sources.These
Thesewe
wecall
call'constitutional
conventions,.
'constitutional conventions'.
sources.
constitutionalconvention
convenrionisisa anon-legal,
non-legal,but
butnonetheless
nonethelessbinding,
AAconstitutional
binding,
ruleofofconstitutional
constitutionalbehaviour.
behaviour.By
Bynon-legal
non-legalisismeant
meantthe
thenotion
rule
notionthat
thatthe
the
ruleisisnot
notenforceable
enforceableby
bya acourt.
court.Conventions
Conventionsmay
maybeberecognized
recognizedasas
rule
existingand
andmay
mayeven
evenbebeused
judgeasasananaid
usedby
b.va ajudge
aidtotointerpreting
interpretingoror
existing,
developing
thelaw)
law,but
butno
nocourt
courtwill
willenforce
enforcea aconvention.
convention.66 AAconvention
developing the
conventiJn isis
bindingnot
notbecause
becauseof
judicialsanction
ofthe
thethreat
threatofofjudicial
sancrionbut
butfor
binding
forone
oneof
oftwo
rwo
otherreasons:
reasons:either
eitherbecause
becauseof
ofthe
thepolitical
politicalconsequences
consequenceswhich
whichmay
other
mav
followfrom
fromits
itsnon-observance,
non-observance, ororbecause
becausethe
theperson(s)
person(s) bound
follow
boundby
bythe
the
convention simply
simplyfeel
feelthis
thissense
senseof
ofbeing
beingbound
boundsosostrongly
stronglythat
thatthey
convention
the1.will
will
notwant
wanttotodepart
departfrom
from it.it.Let
Letus
usillustrate
illustrate each
eachwith
withan
anexample.
not
example.ItItisisaa
constitutional convention
conventionthat
thatministers
ministersininthe
government are
thegovernment
constitutional
areindividuindividuparliament. The
allyand
andcollectively
collectively responsible
responsible totoParliament.
Thecontours,
contours,strengths,
ally
strengths,
and limitations
limitations of
of this
thisconvention
convention will
will be
be fully
fully explored
explored inin chapter
chapter 5,5,
and
below. The
Theconvention
convention of
ofministerial
ministerial responsibility
responsibility-includes
below.
includes the
therule
rule that
that
parliament. Now,
ministersmust
must not
not knowingly
knowingly mislead
mislead Parliament.
Noq suppose
suppose aaMinisministers
Minis_
parliamenr. No-one
ter does
does knowingly
knowingly mislead
mislead (that
(that is,
is,lie
lie to)
to) Parliament.
No-one could
ter
could sue
sue
7
the Minister
Minister for
for such
such an
anact,
act, nor
nor could
could the
judicially reviewed.
the Minister
Minister be
be judicially
the
reviewed.T
Lying to
to Parliament
Parliament isis not
nor aa legal
legal wrong.
wrong. But
But itit isis aa constitutional
constitutional wrong:
Lying
wrong:
an example
example of
of behaviour
behaviour which
which isis unconstitutional
unconstitutional without
without being
itit isis an
being unurilawful. While
while aa Minister
Minister could
could not
not be
be taken
taken to
ro court
court over
over his
lawful.
his or
or her
her lying
iying
to Parliament,
Parliament, however,
however, this
this isis not
not to
to say
say that
that there
there would
would be
to
be no
no reaction,
reaction,
no sanction,
sanction, or
or no
no enforcement
enforcement of
parliament
of the
the rule.
rule. On
on the
the contrary,
contrary, Parliament
no
would take
take action.
action. Parliament
Parliament would
parwould require
require the
the Minister
Minister to
would
to attend
attend Parliament, to
to explain
explain himhim- or
or herself,
herself, to apologize
apologize if the misleading had been
liament,
inadvertent, or
or to
to resign
resign from
from office
office if
if the misleading
misleading had been deliberate.
inadvertent,
Alternatively,
the Prime
Prime Minister
Minister might sack any Minister who had lied to
Alternatively, the
prime Minister
Parliament: the
the rule-book
rule-book which
which the Prime
Minisrer gives
gives to each of his
Parliament:
.Ministers who
ministers upon
upon appointment
appointment to
to office
office now provides
provides that: 'Ministers
ministers
knowingly
mislead Parliament
will be expected to offer their resignation
knowingly mislead
Parliament will
resignation
to
to the
the Prime
Prime Minister'.8
Minister'. 8 The
The rule
rule that
that ministers
ministers must
must not
not lie to
to parliament
Parliament
is
is aa good
good example
example of
of aa convenrion
convention which
which is politically
politically enforced.e
enforced. 9
6
The leading case illustrative of the
6 The leading case illustrative of
the distinction
distinction between
between court-enfbrcement
court-enforcement and
and courtcourtrecognition of constitutional conventions is Attorney*General
Jonathan cape
Cape [1976]
recognition of constitutional conventions is Attorney-General v Jonathan
fig761
QB
zsz.
z.
75
review is the name given
';udicial
7 Judicial review is the name
given to
to the
the legal
legal procedure
procedure by
by which
which actions
actions and
and decisions
decisions
of the government may be challenged in court. The law of udicial review
of the government may be challenged in court. The law off judicial review isis the
the subject
subject of
of
chapter 6.
chapter 6.
Ministerial code (zoor), para. r(iii).
8 Ministerial Code (ZOOI), para.
I(iii). This
This isis discussed
discussed in
in more
more detail
detail in
in chapter
chapter 5.5.
f'It
is also a good example,
9 It is also a good example, itit should
should be
be noted,
noted, of
ofaaconvention
convention that
that isis written
written dowi.
down.

An
Anexample
erampleofofa aconvention
conventionwhich
irhich-- r,
weight
of
its
own
authoritytha
t ' rs[ r,-,: ,
weight of its own authorifi
-that
to
applies
feel
that
it
should
apply
applies feel that it should appl] tome~
them
the
er. I I
theappointment
appointmentofofthe
thePrime
Prime..\lin
_\[inr-srer
whomsoever
whomsoever she
shewishes
wishestotobebeher
herPm
Pi-iri-,,
whether
a
Member
of
Parliament
whether a Member of Parliamentororno
n(_)[.
et
citizen
citizenorornot.
not.Indeed,
Indeed,legally,
lega-llr,if;fthe
1[6 f_lir:
totoappoint
anyone
at
all
to
the
office.
Di
appoint anyone at all to rhe office. Thr
there
- the \-er elu
_thereshall
shallbe
beaaPrime
PrimeMinister
Minister-rhe
tion,
not
law.
Yet
this
legal
position
d
tion, not law. Yet this legal position dcrcs r
appo in - as .
reality.
reality.In
practice the
Inpractice
theQueen
Qreen appoinL. a-.
isisthe
leader
of
the
political
party
the leader of the political parr.\-whic
n hich cn
seats
seatsin
inthe
theHouse
House of
ofCommons.
Commons. She
She J, *
She
[pe
Shealways
alwaysappoints
appoints someone,
someone, and
andth
that
ptr
the
leader
of
the
political
party
wi
rh
~ c
the leader of the political parr\ sirh-ar:
10
Commons.
[ ~ rh.
"Commons.l0 Yet
Yetwhy?
why? ItIt may
mar- be
be tha
that
sequences
of
not
acting
in
this
way_
Per'
-)1
sequences of not acting in this xar. Perha,
and
Dol I'
and acts
acts in
in accordance
accordance with
with com-en
conr-enri,_,n
status
to
be
further
diminished.
But
. I
status to be further diminished. But un
unlrt,
ister
lies
to
Parliament,
it
is
very
unclear
ister lies to Parliament, it is verr-unclear ia
~een acting
unconventionally would . ]
Queen acting unconventionallr- would h'e
acts
conventionally
he c,. r
acts conventionally simply
simply because
because she
We
should
be
slow
to
condemn
We should be slow to condemn thrs
struggle
rrer. =
struggle to
to come
come to
to terms
terms with
with the
the srenE
ported
with
judicial
sanction.
We
like
o 'rnported with iudicial sanction. \\'e like ro
need
sanction
and
that
the
most
effec
.
need sanction and that the most effecrr"-,
court-room.
But
consider
for
a
momen
court-room. But consider for a momenr -a.l
you
will - .
vou routinely
routinely and
and perfectly
perfectly obey,
ober, yet
r er rr hii I
you
nor
enshrined
in
some
form
of
wri
\ ou nor enshrined in some form of u rirrcr
have
have you
you attended
attended in
in fancy
fancy dress,
dress, or
$can
or wea
ming
costume?
How
many
law
prOD
- _
ming costumel How many law profle.s,,rs
times
have
you
picked
your
nose
during
times have you picked your nose during :1. ,
questions of
of my
my lecture
lecture audiences,
audiences and
and nci
ne
questions
doing
any
of
these
things.
Yet
no\yhere
in
doing any of these things. Yet nou here in :J
I

-,,;

10 This is true whenever such a person is ay .

'' This is true whenever such a person is ar ailai,,,
(as occurred
occurred in
in 1974), or
or ifif there
there is
majority (as
majority
is suc:r ;
ry74),
occurred in
in 1957 and
and 1963),
1963), the
the position
position isis ineriubl.
ine\i:
occurred
ry57
tions
are
discussed
in
chapter
3.
For
now
the im
rions are discussed in chapter 3. For noo the
,rnpl
\-entional nature
nature of
ofthe
the rule
rule which
which gives
gives rise to un
ventional
rise to uncer_
the rule
rule we
we are
are considering
considering were
were legal or nswhether
hether the
lesal or c,

On Constitutions
Constitutions
On

IrIr

An example
example of
of aa convention
convention which
which isis followed
followed simply
An
simplv because
because of
of the
the
weight of
its own
of its
own authorityauthority-that
weight
to say,
people to
that isis to
say, because
because people
to whom
whom itit
applies feel
feel that
that itit should
should apply
apply to
to them
them-is
the convention
applies
- is the
convention concerning
concerning
the appointment
appointment of
of the
the Prime
Prime Minister.
Minisrer. Legally,
the
Legally, the
the Q!.teen
may appoint
appoint
Qreen may
whomsoever she
she wishes
wishes to
to be
be her
her Prime
Prime Minister:
whomsoever
Minister: absolutely
absolutely anyone,
anyone)
whether aa Member
Member of
of Parliament
Parliament or
not, whether
or not,
whether aa Peer
whether
Peer or
not, whether
whether aa
or not,
citizen or
not. Indeed,
or not.
Indeed, legally,
legally, if
if the
the Queen
citizen
so chooses
chooses she
she does
does not
not have
have
Queen so
to appoint
appoint anyone
anyone at
at all
all to
to the
the office.
to
office. There
There is
is no
legal requirement
no legal
requirement that
that
there shall
shall be
be aa Prime
Prime MinisterMinister-the
very office
there
the very
office is
is the
the creation
creation of
of convenconvenlaw. Yet
position does
Yet this
this legal
legal position
does not
not represent the
tion, not law.
the contemporary
contemporarJpractice the
In practice
the Queen
appoints as
reality. In
as Prime
Prime Minister
Minister the person who
who
Queen appoints
leader of
political party which commands
of the political
commands an
isis the leader
an overall
overall majority
majority of
of
seats
in the
the House
House of
of Commons.
Commons. She
She does
does not
eats in
not choose
choose whom
whom she
she wants.
She always
always appoints
appoints someone,
someone, and
and that person is
She
is always
always the person who is
is
the leader
leader of
political party
of the
the political
party with
with an
an overall
the
overall majority
majority of
of seats
sears in
in the
lo Yet
Commons.'o
Yet why? It
It may be
be that
that the
the Queen
Commons.
fears the
political conthe political
Queen fears
sequences
way. Perhaps she is
equences of not acting in this way.
is jealous of her position
and acts
acts in
in accordance
accordance with
with convention because she
and
she does
does not
not want
want her
stanrs
tatus to be further diminished. But unlike the situation in which a MinParliament, it is very unclear what the political reaction to the
.ister
ter lies to Parliament,
Q.leen
tikely that
rhat the Queen
Queen acting unconventionally would be. It is more likely
Queen
acts conventionally simply because she considers it to be appropriate.
appropriate.
We should
should be
be slow
slow to
to condemn
condemn this
position. Lawyers
this position.
We
Lawyers frequently
struggle
to come to
to terms with
with the
the strength of rules
truggle to
rules which are
are not
not supported with judicial
observed rules
fudicial sanction. We like to imagine that to be observed
need sanction
sanction and
and that
that the
the most effective
effective form
need
form of sanction
sanction lies
lies in
in the
court-room.
court
-room. But consider for a moment all the conventional
conventional rules which
routinely and perfectly obey, yet which are neither legally
you
legallv binding
binding on
1-ou routinely
\ou nor enshrined
enshrined in some form of
you
of written code. How many law lectures
have you attended in fancy dress, or wearing nothing more than a swimhaye
ming costume?
costume? How many law professors have
have you spat at?
at? How many
rimes have you picked your nose during tutorials?
times
tutorials? Every year I ask these
of my lecture audiences, and never yet has anyone admitted to
questions of
doing any of
doing
of these things. Yet nowhere
nowhere in my lecture theatre is it written
T his is true whenever such a person is available.
available. If there is no party with an overall
'oo This
mafority (as
:'1ajority
(as occurred
occurred in
in 1974),
if there is such a party but it has
has no
no clear leader (as
ry74), or if
-,<-curred
red in
in 1957
position is inevitably
inevitably more complicated.
complicated. These complicacomplicary57 and 1963), the position
thrrs
ns are discussed
discussed in chapter 3.
3. For now the important point is that it is not the con'' entional nature
of
ntional
of the rule
rule which
which gives rise
rise to uncertainty:
uncertainty: these complications
complications would
would arise
*hether
considering were
were legal
legal or
or conventional.
conventional.
ther the rule
rule we are considering

12

Public Law

that ,rro.nrs
students musr
must wear appr
appropriate
clothing, musr
must nor
not spit ar
at me,
me, or
,'n'r,
;'::::hing,
must not pick their noses. We are all of us bound by convention and
day. We
We do not need to write rules down for them to be
be
custom .every day.
effective or for us to feel bound by them. Nor do we necessarily need to
effective
to them
them in order
order to
to ensure
ensure that
that they will be
attach judicial sanction to
observed.
observed.
Having established what
what constitutional
constitutional conventions
conventions are
are and
and having
having
Having
illustrated the reasons why they
they may be considered a binding
binding part of
of the
illustrated
constitutional order, let us return
return now
now to the question of written and
constitutional
was suggested
suggested above
above that
that it is
is frequently
frequently
unwritten constitutions.
constitutions. It was
unwritten
A key
key part
part of
asserted that the constitution,
constitution, because
because unwritten,
unwritten, is flexible. A
asserted
argument is that because the constitution
constitution is unwritten it relies more
this argument
than written
written constitutions
constitutions do on
on constitutional
constitutional conventions,
conventions, and
and that
than
practices
legal
conventions,
mere
political
rather
than
mere
they
are
because
conventions,
flexible. This argument
argument
flexible. Therefore, the constitution
constitution is flexible.
rules, are flexible.
makes two assumptions, both of which may be challenged. The first is
makes
that the constitution
constitution relies so
so much
much on conventions
conventions because the constituconstituDoes this claim
claim withstand scrutiny?
scrutiny? There does
does not
tion is unwritten. Does
seem to
to be
be any
any reason
reason why this
this should necessarily be
be the case.
case. It so
seem
as ministerial
ministerial responsibility
responsibility and
and the appointappointsuch as
happens that issues such
regulated by convention rather than by
ment of the Prime Minister are regulated
law, but there is no reason in principle
principle why this should necessarily
necessarily be so:
it is an accident
of
history,
not
a
logical
requirement.
could easily
easily have
have
requirement.
We
could
histor-v.
a
accident of
aa Ministers Act
Act or
a Prime
Prime Minister
which the
the existing
existing conAct in
in which
Minister Act
or a
yentional
ventional rules could be written down in statutory form.
form. We would still
have
unwritten constitution,
be one in which convenconvenwould now be
have an unwritten
constitution, but it would
constitution
role. Equally we could draft a written constitution
tions played a lesser role.
which provided for a doctrine of
responsibility, but which did
of ministerial responsibility,
not spell out in detail what the obligation of
responsibility
of constitutional responsibility
would require in various different circumstances. Here we would have a
written
notwithstanding its codified
codified status, continued
written constitution
constitution which, notwithstanding
to rely on conventions
to
flesh
out
the
basic
structure
laid
laid down in the
basic
conventions
text. The extent to which a constitution
source
conventions as a source
constitution relies on conventions
of authority does not appear therefore
therefore to be dependent on whether the
constitution
written or unwritten.
unwritten.
consdtution is written
The second assumption is that because
because conventions are political rather
To
evaluate
this
than legal
they
are
flexible.
have to consider
To
this claim we have
legal
are flexible.
There
is
no
authoritative
list of constihow a rule becomes a convention.
convention.
tutional conventions. Equally, however,
political
however, it is not the case that all political
as
binding
constitutional
conventions.
Some
practices
would
qualify
qualify
conventions.
practices would
as binding constitutional

On Constttilttt.,,ii
Constitutt ';":

political
political practices
practices are merelv
merely descriptir
descriptiyee c,f
0 - ,,
should happ,
bap.,.
binding rules setting out what shoul,i
properly to be regarded
regarded as
as constirudonel
constitutiona:. ,
can we tell whether a practice is a bindins
bin din~
Jennings, a constitutional
constitutional lawver
lawyer writins
writing m
in
Jennings,
.c
three-pronged test should be applied: to Jc
mere
mere political
political practice
practice or
or aa binding
binding cofl\'entrrcon "en .
what are the precedents-how
precedents-how long
long h'as
has the rit since the monarch
someo~ ,
monarch last appointed
appointed someonr
not the leader of
of the majority political partl
par :'
For how long
long have ministers been responsrb
respon 5i
the period
period of
of unbroken
unbroken observance
observance of
of the rul,
likely
likely the thing
thing was to be a constitutional
constitutional c,rr
suggested,
suggested, you
you should ask
ask whether the
the pt<',l,
constitutional stage-feel
stage- feel bou-r
actors on the constitutional
sider it to be a mere practice which could
cou l t
0 t
sense that there is an obligation to
there a sense
stated, you have to consider
consider whether therr
there shgn. I
for the rule. Is the rule connected to nwh
th .-*other words, is the thing concerned x\yiith
the regulation of relations between them.
the . ,:,
relationship between the individual
individual and the I
Thus, a
is a
a practice
practice nhlii
~-' ::-J
Thus,
a convention
convention is
unbroken observance,
whi h t-1:.
unbroken
of n'hich
observance, in respect of
gation, and which forms an integral parr
pan 0oi- t
iierrb
does not sound much like a recipe for fie
..
rions-they
nons - they are things which traditionallr
traditionally h;
is a force
force for
0 ri
Tradition is
for conservatism,
conservatism. tbr

r-

:1
Jennings, The
:
IvorJennings,
The Law
Lao and the Clins:;::.
Cons:t;t*;r'
" See Sir Ivor
.rt
136. For
For aa more
more recent
recent statement to
to similar
sirnilar eifrffcc-'
r 136.
(rggg) 19
Crnstirutional Convention'
rg Legal StuJ~5
Stu,ll,.s :4
Convention' (1999)
'.
Constitutional

L~
Tv'o examples
illustrate the point. :\5
examples suffice
suffice to illustrate
-ls a rn
': Two
\ct of Parliament until
passed by both H
Houss
;'-et
ouses ,,f;' Fr
until it is passed
essent (the only exception, immaterial
immaterial here, concerns
cone-erni fr
.assent
rn chapters
chapters 3
However, it is a com'en
conr enrr,
ill
below), However,
' n
aind 4,
3 and
4, below).
rcl'use
has bee
t<.n r;,,
fuse her royal assent to legislation which has
n'as in 1r --:,i
'Jt last
last time the
royal assent was refused
refused was
dle
the royal
~imilarl y, as
.
Similarly,
matter of law
law the monarch may
mav disrru;i
as a matter
,

ir

-rJion
-e-.aso
n or
or for
for none,
none. However, it
it isis aa com-ention
convention,n -:
:rcrcised
the government first
first suffers
suffers aa \i-,tr
'l:ercised unless
unless the
wx used
i.rmmons:
dismissal power was
use,j '*r
mmo ns: the last time the dismissal
,f- no confidence
\\ rlhar
confidence was in
in 1834 during
during the reign of \\-

On Constitutions
Constitutions
On

13
I3

political practices
practices are
merelv descriptive
are merely
descriptive of
of what
what does
political
does happen,
happen, rather
rather than
than
binding rules
rules setting
setting out
out what
what should
should happen,
happen, and
binding
and ought
ought therefore
therefore not
not
properly to
to be
be regarded
regarded as
as constitutional
constitutional conventions
conventions at
properly
all. But
But how
how
at all.
practice isis aa binding
can we
we tell
tell whether
whether aa practice
binding rule
rule or
mere description?
can
or aa mere
description?
a
constitutional
lawyer
writing
in
Jennings,
a
constitutional
lawyer
writing
in
the
the
rg3os,
I930S,
considered
that
considered
that aa
Jennings,
three-pronged test
test should
should be
be applied:
applied: to
to decide
three-pronged
decide whether
whether something
something isis aa
mere political
political practice
practice or
or aa binding
binding conventional
you should
mere
conventional rule
rule you
should ask
ask first,
first,
precedents-how long
what are
are the
the precedents-how
long has
has the
what
the thing
thing happened?
happened? How
How long
long isis
since the
the monarch
monarch last
last appointed
appointed someone
someone as
as Prime
Prime Minister
Minister who
itit since
who was
was
not the
the leader
leader of
political party
party in
of the
the majority
maiority political
in the
the House
House of
of Commons?
Commonsl
not
For how
how long
long have ministers been
been responsible to
to Parliament?
Parliamentl The
The longer
longer
For
of unbroken
unbroken observance
observance of
of the rule,
rule, Jennings
posited,
the period of
the
posited,
the
more
Jennings
likely the thing was
was to be aa constitutional
constitutional convention.
likely
convention. Secondly,
Secondly, Jennings
Jennings
you should
suggested, you
should ask
ask whether
whether the
people concernedthe people
suggested,
concerned-the
leading
the leading
actors on
on the constitutional
constitutional stagestage-feel
bound by the rule.
actors
feel bound
rule. Do they
they conpractice which
to be
be aa mere practice
which could be
sider itit to
be changed
changed on
on aa whim,
whim, or
or is
sense that
that there
there is
is an
an obligation to
follow? And
to follow?
And finally, Jennings
there aa sense
Jennings
stated, you have to consider whether there is a good constitutional reason
for the
the rule.
rule. Is
Is the
the rule
rule connected to
to what
what the
the constitution is
is about?
for
about? In
other words, is
is the
the thing
thing concerned with
with the
the institutions
institutions of State,
State, with
other
the regulation of relations
relations between them,
them, or
the
or with
with the
the regulation of the
relationship between the individual
individual and the State?
State?rl11
relationship
Thus, aa convention
practice which
convention is
is aa practice
which enjoys
history of
Thus,
enjoys aa long
long history
observance, in respect of which there
there is a strong sense of obliunbroken observance,
gation, and which forms an integral part of the constitutional
constitutional order. This
does not sound much like a recipe for flexibility! Conventions
Conventions are
does
are traditions-they are things which traditionally
traditionally happen, over and over
tions-they
12
over again.
again.tz
is aa force
force for
for conservatism,
conservatism, for
for doing
Tradition is
was
doing the
the same
same thing as
as
rr

IvorJenningq
The Law and
(5th edn., London, 1959),
ond the Constitution
Constitutian [1933]
II See Sir Ivor
Jennings, The
rg5g),
[lq:S] (5th
at 136.
136. For
For aa more
more recent statement to
to similar effect, see J.
at
J. Jaconelli,
Jaconelli, 'The Nature of
C-onstitutional Convention'
(rgg9) 19
Convention' (1999)
24.
Constitutional
Legal Studies 24
ry Legal
r2
examples suffice
sufrce to illustrate
12 Two examples
illustrate the point. As a matter
matter of
of law a Bill cannot
cannot become an
of Parliament until
until it is passed
of Parliament and also receives the royal
:\\ct
ct of
passed by both Houses
Houses of
concerns the House
assent (the only exception, immaterial
immaterial here, concerns
House of
of Lords
I-ords and is considered
considered
chapters 33 and 4,
in chapters
below). However,
However, it is a convention (not a law) that
that the
the monarch will
will not
4, below).
refuse her royal assent to legislation which has been passed by the Houses of Parliament:
the last time the royal
r7o8 during the reigl
royal assent was refused was in
in 1708
reign of
of Queen
Q!teen Anne.
Anne.
Similarly,
imilarly, as a matter
matter of
of law the monarch
monarch may dismiss the government
government at any time for any
reason
.eason or for none.
none. However, it
it is a convention
convention (not a law)
law) that
that this power will not be
be
c,rercised unless
c.'l:ercised
unless the
the government
government first suffers a vote of no
no confidence in the
the House of
C-ommons:
Commons: the
the last
last time
time the
the dismissal
dismissal power was
was used without
without there
there having
having been
been aa prior
prior vote
vote
of no confidence
confidence was in 1834
1834 during
during the reign of
of William
William IV.
'rf

14

PublicLaw
Law
Public

doneininthe
past,not
the past,
notaaforce
force for
for change.
change. In
Inthis
thissense
sense reliance
reliance on
convendone
on conventions makes
makes the
theconstitution
constitution more
more rigid
rigidand
andmore
more fixed,
fixed, not
notmore
more flexible.
flexible.
tions
Wb should
guard against
should guard
against making
making lazy
lazyassumptions
assumprions about
about what
whatthe
thesource
source
We
offlexibility
flexibility is.
is.To
To the
theextent
extent that
that the
theconstitution
constitution isisflexible,
flexible, such
flexibilsuch flexibilof
ity does
does not
not exist
exist because
because the
the constitution
constitution isis unwritten
unwritten or
or because
because itit relies
relies
ity
particularly on
on conventions.
conventions. ItIt isis true
true that
that the
the constitution
constitution isis unwritten,
unwritten,
particularly
and itit isis true
true that
that conventions
conventions remain
remain an
an integral
integral source
source of
of constitutional
constitutional
and
authority, but
but neither
neither of
of these
these facts
facts isis itself
itself capable
capable of
of explaining
explaining why
why the
the
authority,
constitution isis flexible.
fl exible.
constitution

THE CHARACTER
CHARACTER OF
OF THE
THE CONSTITUTION
CONSTITUTION
THE
being the
the case,
case, is
is itit sustainable
sustainable to
to claim
claim that
that the
the constitution
constitution isis
TThis
his being
flerible at
at all?
alli In
In one
one sense,
yes itit is:
sense, yes
is: there
there isis aa relatively
relatively straightforward,
straightforward,
flexible
indeed rather
rather obvious,
obvious, way
wav of
of arguing
arguing that
that the
the constitution
constitution isis flexible.
flexible. A
A
indeed
decade ago
ago there
there was
was no
no Scottish
Scottish Parliament,
Parliament, no
no Welsh
Welsh Assembly,
Assembly, no
no
decade
London mayor,
mavor, and
and no
no Human
Human Rights
Rights Act.
Act. Now
Now we
we have
have all
all these
these things.
things.
London
fact that
that we
we have
have recently
recently witnessed
witnessed extensive
extensive constitutional
constitutional reform
reform
TThe
he fact
itself evidence
evidence of
of the
the inherent
inherent flexibility
flexibility of
of the
the constitutional
constitutional order,
order, itit
isis itself
seems. Yet
Ibt there
there is
is something
something troublingly
rroublingly superficial
superficial about
about this
this argument.
argumenr.
seems.
Simpll-because
the constitution
constitution may from
from time
time to
to time be reformed does
does
Simply
because the
not necessarily
necessarily mean that the constitution
constitution must therefore be flexible.
flexible. As it
it
not
out, many of the changes we
we have recently seen
seen were exceptionally
exceptionallv
turns out,
difficult to
to make. The processes of devolving power
power to
to Scotland
Scotland and
and to
difficult
\\aleq for
for example,
example, can
can be
be seen
seen to have comprised several stages,
stages, taking
\Yales,
man\ years:
\@rs: first,
first, during the
the earlier
earlier 1990S
rggos there
there were numerous
numerous thinkmany
tanks looking at
at the
the arguments in
in favour
favour of devolution and
and then
at the
tanks
then at
detailed mechanics of how it might work;
work;l3
governmenr
13 then the Labour government
detailed
came into
into office
office following
following the
general election; then
the 1997
then Parliament
Parliamenr
came
ryg7 general
pa-ssed
the Referendums
Referendums (Scotland
(Scotland and
and Wales)
Wales) Act
Acr 1997
r9g7 which created
creared
ed the
the legal
legal po\ver
referendums in Scotland
power for the government to conduct referendums
the
and in
in \\hles
to determine whether there was
was sufficient popular will in
and
\Yales to
support
pport of
of devolution; then the governmenr
government published its White Papers
Papers
tturmal
-or mal policv
policy documents)
documents) outlining the different
different models of devolution
nhich
would be on offer in Scotland
Scotland and in Wales;
Wales; then the referendums
referendums
-hich rrould
nere
ere held;
held; then
then the Scotland Act rggS
1998 and the Governmenr
Government of Wales
Wales
1998 were
were introduced
introduced in,
in, debated
debated in,
in, and
and eventually passed
passed by,
by,
.\\ct
ct rgg8
::
-\luch of
13.\1uch
of this
this work built
built on the earlier
earlier experience
experience of the unsuccessful
unsuccessful attempts
attempts at
at
derolution
in the
the rg7os.
1970s.
de\'olution in

On
OnConst;tutt
Constttttlitit:-'

Parliament;
Parliament; then
thenelections
elections were
wereheld
held to
roetelrt-i
the
only
then
was
theWelsh
Welsh Assembly;
Assembly; and
and onl-v* then x a_s pc,n e
July
r9g9.Thus,
Thus, the
process involved.
the process
inr,olved. ame
July 1999.
amrlni
of
two
rounds
:::
popular voting,
of popular
voting, and
and two rounds of
of 1Iegr
Parliament.
was
achieved
at
the
e
Parliament. Change
Change was achieved at rhe end
come
comeabout
about easily,
easily, nor
nor especially
especiallv quickly.
quicklr.
An
An equally
equally straightforward,
straightforward, and
and inin.jrt,.
argument
made
that
far
argument could
could be
be made that far from
from e.erh
constitution
con
tin . _constitution manifests
manifests remarkable
remarkable conrinurri
public
be
traced
bac
. 0oi.~e:
public law
law in
in England
England can
can be traced back
in
perhaps
uni
eI
in 1215,
rzt5,, the
the continuities
continuities are
are perhaps uniqut
one
middle
of
the
eyen
one short
short hiatus
hiatus in
in the
the middle of the se\-enr*tr
an
for
0"
an otherwise
otherwise continuous
continuous monarchy
monarchr for or-er el
Lords
our
Lords can
can be
be traced
traced back
back to
to the
the early
earlr fourtee
the
have
not
yasuy
h ~
the House
House of
of Commons
Commons have not r astlr chan
relationship
the
two
H
ous
0
- P
p;~
relationship between
between the two Houss oi
reformed
but
has
remained
br
reformed in
in 1911,
rgrr, but has remained br,:radj.
balance
balance of
power between
of power
between Parliament
Parliamenr on
on rhe ,,
the
the other
other gradually
gradually shifted
(from the
shifted (from
rhe Cr
Cr,_,rl"
eighteenth
_
eighteenth and
and nineteenth
nineteenth centuries,
cenruries. bu
bur. ai
constant
reign
of
George
"\'
tha
-constant since
since the
the reign of George \- (thar r._r s
this
. .
this argument
argument too
too is
is troublingly
troublinglv superfi
superhcial.
0""":
tutional
has
been
momen
rutional continuity
continuity there
there has been rrrorrrer.rtc,r.rj
democracy,
fall
of
local
goyer
democracy, the rise and
and fall of local go\-ernme
and
and influence
judiciary are
influence of
of the
the judiciary
are bu
butt rhree
threc
constitutio
a.. _s
may not
not have
have required aa new
new constirudonai
but
radically
altered
.
but they
they have
have clearly
clearly radically altered the
constitution.
Thus,
Thus, it can
can readily
readily be
be seen
seen that
that bo
both c
abiding
the
English
constitution.
~
abiding features
features of
of the English consrirudon. In
constitutions, aa key
ingredient
of
its
uc
key
of its succrss
achieve
balance between
between continuir\
con tinill . - a..
achieve a certain balance
dynamic, and
and is
is open
open to
to renes{_
ren
not fixed but is dynamic,
experience rather little reform,
reform, and
and others
other - n i1l
erperience
last twenty years as
as an
an example,
example, it
it might
migh t tr< r
iast
Conservative government (tglg-rgg7)
(1979-1997) rra_s
was a
Conservative
whereas the
the period
period since
ince l,
and consolidation, whereas
an d radical reform. Yet, again,
again, both
both r-ien.s
\-iews q,
and
was in fact
fact substantial consdrudonal
constitution
There was
an d early rggos:
1990S: in terms of
of the
the relationship
relationsbi
and
*_

On Constitutions
Constitutions

15

Parliament; then elections were held to elect the Scottish Parliament

Parliament and
the Welsh Assembly; and only then was power devolved, with effect from
rg9g. Thus, the process involved, among other things, three rounds
July
July 1999.
popular voting,
of popular
voting, and
and two
two rounds
rounds of legislation
legislation in
in the
the Westminster
Westminster
Parliament. Change was achieved at the end of
the
process,
but
it did not
Parliament.
of
quickly.
come about easily, nor especially quickly.
An
An equally
equally straightforward,
and indeed
straightforward, and
indeed equally
equally rather
rather obvious,
argument could
be
made
that
far
from
exhibiting
great
flexibility,
flexibiliry, the
could be made
far from
constitution manifests remarkable continuity.
Considering
the
the fact
fact that
continuity.
public law in England can be traced back over 800
years
to
Magna
Carta
8oo
perhaps
in
1215,
the
continuities
are
unique
in
the
western
world.
in rzr5,
world. With
one short hiatus in the middle of
the
seventeenth
century,
there
has been
of
of
an otherwise
continuous
monarchy
for
over
eight
centuries;
the
House
otherwise continuous monarchy
powers
L
ords
can
be
traced
back
to
the
early
fourteenth
century;
the
of
Lords
the House of Commons
Commons have not vastly changed in over 400
4oo years. The
relationship
relationship between
the two
two Houses
Houses of Parliament was
was significantly
between the
reformed
reformed in
in 19II,
remained broadly
then; the
r9rr, but has
has remained
broadly constant since
since then;
power
between
Parliament
on
the
one
hand
and
the
Crown
on
balance of
of
Parliament
the
gradually
shifted
(from
the
Crown
to
Parliament)
over
the
gradually
(from
the other
other
shifted
the Crown to
over
eighteenth
but, again,
eighteenth and
and nineteenth centuries,
centuries, but,
again, has
has remained
remained broadly
constant since the reign of
of George V (that is, since the 1930S).
r93os). But again,
this argument too
too is
is troublingly superficial. Amid
Amid this
this apparent
apparent instiru tional continuity there has been momentous
rutional
momentous change: the emergence
emergence of
emocracy, the rise and fall of local government, and the growing power
democracy,
and
judiciary are
and influence of the
the judiciary
a;re but
but three
three examples.
examples. These
These changes
required
a
new
constitutional
settlement
to
be drawn up,
may not have
have
constitutional
ut they
clearly
radically
altered
the
dynamics
of
the
but
they have
have clearly radically altered the dynamics
the existing
constitution.
c0nstitution.
T
hus, it
both change
Thus,
it can
can readily
readily be
that both
be seen
seen that
change and
and continuity
continuity are
rbiding features of
lbiding
the
English
constitution.
Indeed,
as
with
constitution. Indeed,
of
with all successful
successful
:onstitutions, aa key
::onstitutions,
ingredient
of
its
success
is
that
it
key ingredient
its
is
it has
has managed to
rchieve
3.
hieve a certain balance
balance between continuity and change. The balance is
::'ot
periods will
not fixed but is dynamic, and is open to renegotiation. Some periods
.=.xperience
:rperience rather little reform, and others will witness more. Taking the
iast
-t twenty years
years as
as an example, it might be
thought that the period of
be thought
Crnservative
government
(rglg-rgg7)
Conservative
(1979-1997) was aa period of relative stability
stability
;nd
: d consolidation, whereas
whereas the period since
since 1997 has been one of rapid
ind
- d radical reform.
both views
reform. Yet,
Yet, again,
again, both
views would
would be
be overly
overly simplistic.
There was
-:Dere
was in
in fact
fact substantial constitutional
constitutional change
change during
during the
the 1980s
r98os
_;,ld early 1990S:
r99os: in
in terms of the relationship between central and
and local

16
fi

Public L
aw
Puhlic
Ldn

government
government (with the former taking more control over and even abolishabolishing aspects of
[atter); in terms of the constitution
constitution and role of the civil
of the latter);
service
number
civil servants
servants becoming more politicized, in a number
service (with senior civil
of senses);14
liberties law,
laui with the
and in
in terms of civil liberties
the powers of the
senses);l4 and
police and of the security
intelligence services being extended
security and secret intelligence
period. Similarly,
throughout
notwithstanding the
the well-known
throughout the
the period.
Similarly, notwithstanding
reforms which we have seen since 1997
rggT there have been considerable and
significant continuities:
powers and
the House
House of
the powers
and composition of the
continuities: the
Commons, and the powers
powers and influence
monarch being among the
influence of
of the monarch
most notable examples.
examples.
As
continuity
As focusing overly narrowly on questions of flexibility and continuity
leads only to what might be regarded as rather
rather banal conclusions, perhaps
we would do better to change
debate a little.
little. Consider the
change the terms of debate
following
follorving observation:
three striking feaobservation: the 'constitution is marked by three
tures:
rures: it is indeterminate, indistinct, and unentrenched'.ls
unentrenched'.ls This is a much
more acute (as well as more interesting)
merely asserting
interesting) observation
observation than merely
that the constitution
indeterminconstitution is flexible. The constitution
constitution is said to be indeterminate because not all of
of its rules are clear: some are vague. The question of
whom the monarch should appoint as
as Prime Minister in the event of a
hung Parliament,
majority of
Parliament, or in the event that the party with an overall majority
seats has no clear leader, for example, is notoriously unclear. The constitution
be indistinct because constitutional
law is
is not
not sharply
sharply
is said
constitutional law
tution is
said to
to be
demarcated from other areas of law. Is the Police and Criminal Evidence
'constitutional' statute or one which properly belongs to crimAct 1984
rg84 aa'constitutional'
inallaw?
information legislation
legislation constitutional
constitutional in character,
character,
inal law? Is freedom of
of information
questions are
in the
or
without legal
legal significance in
or administrative?
administrative? The
The questions
are without
English legal system because there
there is no special significance attached to
the adjective
adiective 'constitutional'.
'constitutional'. It makes no legal difference whether a rule
16
is
Thus,
not.r6
Thus, the
is described as
as constitutional
constitutional or
or not.
the definition we adopted
above of
of what a constitution
constitution is carries no authoritative weight in law-as
a definition
definition it was not derived from law, but from scholarly
scholarly analysis. The
two
be untwo should not be
Finally, the constitution
is said
be confused!
confused! Finally,
constitution is
said to be
entrenched
entrenched because there
there is
is nothing in it that
that cannot be
be changed. The
key
key to
lies in the
power of Parliament.
Parliament. We
have already
to entrenchment lies
the power
We have
noted the doctrine of
of Parliament.
Parliament. This doctrine (which
of the sovereignty
sovereignty of
provides that Parliament has
will be
be discussed
discussed more fully in chapter
chapter 4)
4) provides
t4

14

This is discussed further in chapters

chapters 3
3 and 5.
5.

at 40.
Bogdanor, and B. Rudden, Comparing
Comparing Constitutions (Oxford, 1995),
ryg5),at
4o.
" S. Finer, V. Bogdanor,
16

15

16 For
For aa contrary view,
Laws LJ
LJ in
in Thoburn
Thoburn vo Sunderland
Sunderland City
Ctty Council [2002]
view, see
see Laws
fzoozl
33 WLR
This case is discussed in chapter 4.
z47.Tbrs
WLR 247
4.

On
OllS!;fll :
On C
Constr::,.;,

I ,.

legislative omni-competence.
-~
omni-competence. In shorL
Parl.
short. P
any law whatsoever,
whatsoever, and nobody
nobodr has
has the p,,
Parliament's
Parliament's legislation.
legislation. The consequence
coflSQuence,,c
is
is entrenched: there is
uhich c'ani
is nothing
nothing which
17 The Scotland .-\ct ~r,'r","
cannot be unmade.
unmade.r'The
-\cr
the Human Rights Act 1998,
.:: 1998, the Repr
Repr*rr
the European Communities Act
Act 1972
rg7:.. .-\S
\s I.
ever, the
be ch
_
the fact that everything can
can be
ch.xn*,
thing
thing will
will be
be changed.
changed. It
It does
does not
not e\"C."~
even
changed.
con\"t~r:'
changed. As we have
have seen, neither con\rrl
easily amended: indeed, experience suss.:l
ug-g-es-::.
tional reform entails considerable chaUen
challenla
5 "'"
the lack of
of entrenchment in theory.
theorr.
be di
Would any
Would
any of this
this necessarily
necessarilr be
difler
codified? Let us take each feature in turn. II
constitution
be any
constitution necessarily be
less inder
anr- 1
down? Of course not.
not. There
There is
is nothin=
nothin,l n*
which appears as part of a codified text
tert thar
writing
. g. ~r
rvriting down
gorernin.l
down the existing rules
rules goyer
\finister, for
.\1inister,
'e arfor example, would
would not
not ma
make
, ..
should do in the event of
of a hung Parlia
Parliarnen
\\'e rrr,
decided to
.
to codify
codify our
constitution we
our constitution
clarify some of the aspects of the con
rim .
consrirur:,
be currently
currently indeterminate. We mighL
might. foti,r- ;:.t
rvhat the monarch should do
what
do as
as regards ap:
the event of a hung Parliament.
Parliament. But in this
thrs
be one
be
one of writing down
down or
or codifyingcodifl rng thee
nriting down new rules. The mere process
writing
pr(>cc.i>
mina te.
not of itself
itself make rules less indeter
indeterminare.
The
.
The second
second feature
feature was
was the
indistrncr
the indis
C
nlike the
Unlike
quc.:'
the issue
issue of determinac}~
determinacl; this
this qu
directly related
directly
related to
to the
the constitution
constitution bei.n:
beinr

17
be argued
argued that in aa sense
:r :::rs
sn- :r
't It could therefore be
more flexible than are the conventions of the co
con:nn.
\\ hile, as
While,
based c, n ;
as we
we saw
saw above, conventions are
are based
tappen,
ppen, the doctrine of parliamentary
parliamentary sovereign
. --sor.ereirnr,
safeguard
..ateeuard from future reform
reform.. Of course,
course. Parli
Parliarn.:i
m'ention (where the two overlap it is the law
. rnlention
uhlc:r
lari ,,'
:-ractice:
good rea5i.
:rac-tice: conventions are conventions for good
rea-r -:,'fhis may be counter-intuitiye
:0
:. alter them. This
counter-intuitile to men_,.
,',-,uld
ould be more flexible if
if conventions were replaced
replac<J 'h,.
-.;

On Constitutions
Constitutions
On

t7
17

legislative omni-competence.
omni-competence. In
In short,
short, Parliament
Parliament may
may make
make or
or un-make
un-make
legislative
law whatsoever,
whatsoever, and
and nobody
nobody has
has the
the power
power to
to override
override or
or to
to set
set aside
aside
any law
any
The consequence
consequence of
of this
this doctrine
doctrine is
is that
that nothing
nothing
Parliament's legislation.
legislation. The
Parliament's
is entrenched:
entrenched: there
there is
is nothing
nothing which
which cannot
cannot be
be undone;
undone; no
no law
law which
which
is
The Scotland
Scotland Act
Act 1998
1998 could
could be
be repealed,
repealed, as
as could
could
cannot be
be unmade.rT
unmade. 17 The
cannot
the Representation
Representation of
of the
the People
People Acts,
Acts, or
or
the Human
Human Rights
Rights Act
Act 1998, the
the
1972. As
As has
has been
been demonstrated,
demonstrated, howhowthe European
European Communities
Communities Act rg7z.
the
ever, the
the fact
fact that
that everything
everything can
can be
be changed
changed does
does not
not mean
mean that
that everyeveryever,
does not
not even
even mean that
that anything
anything will be
be
thing will be
be changed.
changed. It does
thing
we have
have seen, neither
neither conventions
conventions nor laws
laws are
are necessarily
necessarily
changed. As we
changed.
constitueasily amended: indeed,
indeed, experience
experience suggests
suggests that
that embarking
embarking on constitueasily
tional reform
reform entails
entails considerable
considerable challenges
challenges in practice,
practice, notwithstanding
notwithstanding
tional
of entrenchment
entrenchment in theory'.
theory.
lack of
the lack
the constitution were
were
any of this necessarily be different if the
Would any
Let us
us take each feature
feature in turn. First
First determinacy.
determinacy. Would
Would the
the
codified? Let
codffied?
be any
any less
less indeterminate
indeterminate if it were
were written
constitution necessarily be
Of course not. There is nothing necessarily clearer about a rule
rule
down? Of
as part
part of
of aa codified text than
than one which
which does not. Merely
Merely
appears as
which appears
existing rules governing the appointment
appointment of
of the Prime
writing down the existing
n'riting
.\1inister, for example, would not make any clearer what the monarch
monarch
\linister,
of aa hung Parliament. Now, it might
might be that if
if we
should do in the event of
should
we would simultaneously decide
decide to
decided to codify our constitution we
clarify some of
of the aspects of
of the constitutional
constitutional order which we know to
clarify
might, for example, want to make
make clearer
currently indeterminate. We might,
be currently
as regards appointing
appointing a Prime Minister in
what the monarch should do as
rvhat
of aa hung
hung Parliament.
Parliament. But in this case the enterprise
enterprise would not
the event of
down or
or codifying the
the existing constitution, but of
one of writing down
be one
Titing down new rules. The mere process of writing things down does
does
rvriting
of itself
not of
indeterminate.
itself make rules less indeterminate.
The
the indistinct
nature of the
constitution.
the constitution.
indistinct nature
was the
The second
feature was
second feature
be more
C
nlike the
to be
does appear to
determinacy, this question does
Unlike
issue of determinacy,
the issue
irectly related
Under aa written
directly
the constitution being
being unwritten. Under
related to
to the
r;:; It could therefore be argued
the law of the constitution which is
argued that in aa sense it is the
ore flexible than are the conventions of the constitution, and not the other way around.
rrore
-.\
routinely
traditions, on
things which routinely
'r\bile,
are based on
on traditions,
on things
hile, as
above, conventions are
as we
we saw
saw above,
.~:leppen,
ppen, the doctrine of parliamentary
dilfrcult to
law is relatively difficult
parliamenary sovereignty means that law
-eguard from
pass aa law
replaced a
law which replaced
could pass
course, Parliament could
from future
future reform.
reform. Of course,
'et-e_zuard
_:', mention
nrention (where the two overlap it is the law
law which prevails), but this rarely happens in
-:ra,,-tice:
act:ice: conventions are conventions for good reason, and
and Parliament rarely sees the need
[er them. This may be counter-intuitive to many
constitution
l' ;elter
many lawyers, but perhaps the constitution
u ,rld
-..! be
trc more
more flexible
flexlble if conventions
conventi<lns were replaced by laws.

18I8

PublicLaw
Law
Public

On
n.
OnConstituti
Constttrtlt,,r:.

constttution,constitutional
constitutional law
lawwould
wouldbe
bethat
thatlaw
lawrelating
relatingtotothe
constitution,
thewritten
written
constitutionalcode
codeand
andthus
thusaarather
rathereasy
easydistinction
distinction could
constitutional
couldbe
bemade
made
betweenconstitutional
constitutional law
lawand
andother
otherlaw,
law,ififthat
thatwere
werefelt
between
felttotobebeimporimportant-This
Thisfeature
featureof
ofthe
theconstitution
consrirurion would
wouldbe
bealtered
alteredby
tant.
bywriting
writingthe
the
constitution
down.
constitution down.
Thefinal
final feature
feature was
wasthe
theunentrenched
unentrenched nature
natureof
The
ofthe
theconstitution.
constitution.
Would
theconstitution
constirution necessarily
necessarilybecome
becomeentrenched
entrenched ififititwere
Would the
werewritten
written
downor
orcodified?
codifiedl Again,
Again, asaswith
with the
theindeterminacy
indeterminacy point
pointabove,
down
above, the
rhe
answerhere
hereisisno.
no.Written
Written constitutions
constitutions do
donot
not have
haveto
answer
tobe
beentrenched,
entrenched,
eventhough
thoughthey
theyfrequently
frequently are
(atleast
are(at
least partially
partially so).
so).AAwritten
even
writtenconstituconsrirution could
could contain
conrain aa clause
clause which
which provided
provided that
thar legislative
legislative power
tion
power
included the
the power
power to
to amend
amend the
the constitution.
constitution. Equally,
Equally, an
included
,., unwritten
,rr*ritt.r,
constitutioncould
could contain
contain entrenched
entrenched rules.
rules. An
An unwritten
unwritten constitution
constitution
constitution
,the legislature
could for
for example
example contain
contain the
the following
following rules:
rules: 'the
legislature may
could
may make
make
or unmake
unmake any
any law
lawsave
save that
that no
no law
law shall
shall infringe
infringe the
the fundamental
fundamental right
or
right to
to
freedom of
of expression'
expression' and
and 'nobody
may override
override or
'nobody may
or set
set aside
aside legislation
freedom
legisiation
save that
that legislation
legislation which
which infringes
infringes the
the fundamental
fundamental right
right to
save
to freedom
freedom of
of
expression may
may be
be set
set aside
aside by
by the
the supreme
supreme court'.
court,. There
There isis no
expression
no necessary
necessary
connection between
between the
the constitution
constitution being
being
unwritten
connection
and
and itit being
beino
-'-a unwritten
unentrenched.
unentrenched.

POLITICAL AND
AND LEGAL
LEGAL CONSTITUTIONS
CONSTITUTIONSIsI8
POLITICAL
constitutional distinction
-\ constitutional
distinction which is
is of
of rather more significance
significance than
A.
than the
familiar distinction
distinction between
between written and
and unwritten constitutions is
familiar
is that
betteen political
political and
and legal
legal constitutions. It is a central theme of this book
between
that public
public law
law does
does two
two things:
things: it
it provides
provides for
for the
the institutions
that
institutions which
erercise
political power,
power, and
and it
it seeks
seeks to
to hold
hold those institutions to
exercise political
to some
fbrm of
of account.
account. Thus,
Thus, public
public law
law regulates
regulates the
the enterprise of governform
government. One
one way
way of
putting this is to
of putting
ro say that
thar the purpose of
ment.
of a constitution
constiturion
rs
frnd ways
wavs of
of allowing
allowing the
to get
. to
to find
the government to
get away
Now,
Lway with less.
less. Noq
rhere are
are essenrially
there
essentially two
two ways
ways in
in which this may be achieved: politically,
L,r
or lesallr.
legally. A
A political
political constitution
constitution is
is one in
in which those
those who
who exercise
exercise
political
political power
power (let
(let us
us say
say the
the government) are held to constiturional
constitutional
.rccount
a ount through
through political
political means,
means, and
and through
through political
political institutions
institutions
ilbr
Thus, government ministers
ministers and senior
senior civil
civil
(for erample,
example, Parliament).
Parliament). Thus,
't This
This section
section isis introductory:
introductory: itit does
does no
no more
more than
than sketch
sketch out,
out, in
in the
the most
most rudimentary
rudimentary

tcrm\
terms, the
the models
models of
of the
the political
political and
and the
the legal
legal constitution.
constitution. We
We i"t
return
to these
these issues
issues and
.r, to

consider
consider them
them fully
fully in
in chapters
chapters 55 and
and 6.
6.

and

servants
servantsmight
mighrbebesubjected
subjectedtotoregular
regrrlar _.*
scrutiny
may
consist
of
taking
part
scrutiny may consist of taking partinin dr
participating
participatingininand
andresponding
respondingtotothe
thein\
iniee
inquiry,
and
so
forth.
A
legal
constitution,
inquiry, and so forth. A legal constinrrion.0 on
imagines
d the
imaginesthat
thatthe
theprincipal
principal means,
means.an
and
rhe p
which
the
government
is
held
to
accounr
which the government is held to accounr,;;:i-.
IfIfyou
youdislike
dislikesomething
somerhing which
which the
rhegoyer
gorernrnr
totodo,
instead
oflobbying
for
parliamen
t;u;. : :
do, instead of lobbying for parlixrnentlrrl
government
or
seek
some
form
government inincourt
court or seek some form of
oij ii.l,
How
may
we
evaluate
the
respective
me
How may we evaluate the respectir-e mcnr
these
basic
models?
Two
methods
sugg
-[
~.
these basic modelsi Two methods sugee.r ri
examine
examinetheir
their effectiveness,
effectiveness, and
andthe
theother
other *,_,ri
which
they
represent
which
is
the
rvhich they represent-which is the more
more ddsn
ible?
Let
us
briefly
consider
each
of
-, 1
ible? Let us briefly consider each of th
the..e
political
constitution
would
clearly
requir
political constitution would clearlr- requirc ~ i
itit would
cru '-,
would require
require those
those performing
performing the
the scrurrn.
tion
seriously,
and
to
have
a
relatively
hig
tion seriously, and to have a relativelr-high *'1t
the
'0 ;
the government
government of
ofthe
the day.
day. If
If these
these condi
condition:
een
that
the
model
promises
mu
ch.
Go
seen that the model promises much. Gor' C"-crr
entirely
it isis throug'"
entirelv dependent
dependent on
politics-it
on politicsthroush
that
.' ,a
that they
they attain
attain much
much of
of their
their legitima
legitiman
democratic
governments
continue
to
po-;;: ~.
democratic governments continue to possss
as
they
continue
to
enjoy
the
support
as thev continue to enjoy the supporr ,_,i.exceptionally
exceptionally difficult
difficult task
task for
for governments
governmenli -rr
M. _ .l;
ubject
to
endless
press
and
media
subject to endless press and media scrU
scrurinr.
ition
from
opponent
political
parties.
Th
sition from opponent political parties. Thurto
to be
be potentially
potentially an
an extraordinarily
extraordinarilv po
porenr
not
do
governments will
will not do things
things which
which the_
rher- t
with,
as
they
will
lose
power.
Therefore.
ri ith, as they will lose power. Theretbri- r
politically to
s\ystems
stems which
which allow
allow them
them politicallv
ro get
ser .eE
good
constitutional
sense.
sood constitutional sense.
dIe s
For aa legal
legal constitution
constitution to
to be
be effectir
effectiyee the
ousness
and
independence
are
equally
as
II
ousness and independence are equallr a-s irn
constitution model.
model. Legal
Legal systems,
systems courL.co G
independence from
from the
the government
government of
of the
dIe .j;
independence
law
can
and
ou=i'take
seriously
the
idea
that
take seriously the idea that law can and oushl
of holding
holding the
the government
government to
to account.
account. Ttrr.
T} ;;:
it cannot
cannot be
be taken
taken for
for granted,
granted, as
as we
we shall
shall sct
-'
can
be
secured,
the
potential
effectiven
0c:n be secured, the potential effectir-enss ot
not seem
seem as
as obvious
obvious as
as itit does
does for
for the
the pt,llr:
PO' not

On Constitutions
Constitutions

rg

servants
be subjected
servants might
might be
subjected to
regular scrutiny
to regular
scrutinv in
in Parliament.
Parliament. The
scrutiny
scrutiny may
may consist
part in
consist of taking
taking part
in debates,
debates, answering
answering questions,
participating in
participating
in and
and responding to
to the
the investigations of committees
committees of
inquiry, and so forth. A legal constitution,
constitution, on the other hand, is one which
imagines that the principal
principal means, and the principal
principal institution, through
which the government is held to account is the law and
and the court-room.
If you dislike something
If
government has done or is proposing
proposing
something which the government
to do,
do, instead of lobbying for parliamentary scrutiny,
scrutiny; you simply sue the
judicial review.
government
government in court or seek some form of
of fudicial
How may
mav we evaluate the respective merits and limitations
limitations of each of
these basic models?
methods suggest
would be
models? Two methods
suggest themselves: one would
be to
examine their effectiveness,
effectiveness, and the other would be to consider the values
which they represent
- which is the more democratic,
represent-which
accessdemocratig or open, or accessible?
ible? Let
Let us
us briefly consider
consider each
each of these
methods. To be
effective a
these methods.
be effective
political constitution
require strong and
constitution would
would clearly require
and vibrant politics;
it would require those performing
performing the scrutiny function
function to take that function seriously, and to have a relatively high degree
degree of
of independence from
government of
the government
If these conditions were met, it can readily
readily be
of the day. If
seen
seen that the
the model promises much. Governments in
in aa democracy
democracv are
entirely dependent on politics-it
politics-it is through the political act of election
that
(as well
power) and
that they
they attain
attain much
much of their
their legitimacy (as
well as
as their
their power)
democratic
governments continue to possess such power for only as long
democratic governments
as
as they
This isis an
they continue
continue to
to enjoy
enjoy the
the support
support of
of the
the majority.
majority. This
exceptionally difficult task for governments
governments to achieve:
governments are
achieve: governments
subject
press and media scrutiny, as
subiect to endless press
political oppoas well as to political
sition
sition from opponent political parties. Thus,
politics looks at
Thus, politics
first sight
at first
to
potentially an
potent source
to be
be potentially
an extraordinarily
extraordinarily potent
source of
of accountability:
governments will not
governments
get away
not do
do things
things which they
they cannot
cannot politically get
ri'ith, as
with,
power. Therefore,
governments
as they
they will
will lose
lose power.
Therefore, imposing
imposing on
on governments
systems
svstems which allow them politically to get away with less seems to make
qood constitutional
good
constitutional sense.
For a legal constitution
constitution to be effective the same initial criteria of seriousness and
and independence are
political
are equally as
as important as
in the
the political
as in
constitution
judges will
constitution model.
model. Legal
Legal systems,
systems, courts,
courts, and
and judges
will require
independence from the government of the day, and
and will be required to
take seriously
seriously the idea that law can
can and ought to be used
used as
as a technique
technique
of holding the
the government to
account. This may
may seem
to account.
seem axiomatic,
axiomatic, but
it cannot be taken for granted, as we shall see.
Even if these ingredients
see. Even
can be secured, the potential effectiveness of the legal
legal constitution
constitution does
not
not seem
seem as
as obvious
obvious as
as it
it does
for the
does for
the political constitution.
constitution. Suing
Suing is

20

Public L aw

,,::'::'::courrs

ll,o,,o,,,y expensive,
expensive, and
and access to the courts is
is limited
rimited to
rhe wellweunotoriously
ro the
that a
court does
does find
find that
resourced. Once over
over that hurdle, suppose
suppose that aa court
government Minister has
is there to
to
government
has acted
acted unlawfully. What then?
then? What is
government
ensure that
that in
in implementing the
the judgment of the
the court
court the
the government
ensure
does as
as the court wished?
does
for example,
Sup
pose, for
Suppose,
example, that in aa case brought by the
the Equal
Equal Opportungovernment has
ities Commission
Commission a court rules that the government
has acted
acted unlawfully
in di
discriminating
in
criminating against women: that
that the
the treatment of women in aa cergovernment could
tain
has been
n'orse than
ain rrespect
peet has
been worse
than that
that of men.
men. The
The government
rern,r\.e the
b.v
the discrimina
discrimination
remo"e
tion (and hence comply with the judgment) not by
rmpror
ine the position of women,
rvomen, as
roying
as the court might have hoped, but by
position
\\'orse. The discrimination
making
discrimination would be removed
ition of
ma
'ing the po
of men worse.
the judgment of the court therefore technically complied with) but
(and
tand the
position
n'omen would
rvould not have been improved,
position of
the po
ition of women
improved, and the position
s'ould have
men would
har.e been made worse. This might be the reverse of what the
court intended
intended or expected
expected to happen. It would certainly be the reverse of
what the EOC, which brought the case, would have wanted. Yet it would
be perfectly compatible
compatible with what the court had ruled. It is very difficult
to have
have any
follow-up to
for
for courts
courts to
any follow-up
to ensure
ensure that
that their
their judgments
iudgments are
particular way.
lack the
in aa particular
way. Law
Law and
and legal
legal institutions lack
implemented in
follow-up that politics and political institutions
institutions enjoy. We
continuity
continuity and follow-up
legal accountability
shall
when we consider
consider matters
matters of legal
shall see
see in chapter 6 when
instances of
more fully that there are in English public law a number of instances
powerful-even
progressivecourts making
even progressivemaking what look like effective and powerfuljudgments
government finds
judgments but which turn out to be rather weak, as the government
(for aa variety of reasons)
reasons) to
it
it so
so easy
easy (for
to evade
evade or
or to
to dilute the strictures
strictures
endeavoured to lay down. This is not to say that legal
which the court had endeavoured
political enforcement
enforcement can never be effective, nor that political
enforcement always
enforcement
will be, but as lawyers we should be very careful about making assumpmeans and
and institutions will necessarily be
tions that legal means
be preferable to
political.
politicaL
\\rhat of
What
political conof the values which the two models embody? The political
rigour and the vigour of
of the political
political process. The
stitution relies on the rigour
more
transparent, participatory,
open, transparent,
representative and
more open,
participatory, representative
and deliberative
deliberative
politics
is, the better
politics is,
better the model will work
practice. These are
are comcomwork in practice.
valueq but there are two problems
problems with them: first, these values
mendable values,
are far easier to articulate than they are to follow in practice, and most, if
all, political systems fail to live up
not all,
up to them.
them. Secondly, there is
is the
inescapable
of what a democracy
democracy (based on majority rule) does
does
inescapable problem of
with its minorities. This is the strength, perhaps, of the legal model of

On
i .
On Constitu
Constirlt::.,n.'

constitutionalism.
constitutionalism. Suing
Suing may
ma1- be
expensl\ (
be expensi\'
expensive
expensive whether you form
form part of the p',.,1ir
political constitution
the
the political
constitution model, there
rhere is
is ;-'n,,
favour of the majority. The down-side..
down-side. ho
hc,'n ::e'
judi.-in
-in aa democracy
democracy hold
political office,
hold political
office. jud.::
elected,
~
elected, accountable,
accountable, nor
nor representati\'e.
representatir e. I[r:
whelmingly
whelmingly male,
male, white,
white, old,
old, upper-mi
upper-mi,idit
their
their constitutional
constitutional and
political role..
and political
role. rhe r
return to these issues
issues in chapters 5i and b..
Having set out, in rather basic term
termr the p
of constitutionalism, we
we can now
nou- begin
t,r -lp_
begin to
public law.
- ;law. Which of these models does
does E
Er-rr
resemble?
resemblel The answer to this question'
question is cchar
public law has been based on the
polirical c,
the political
years the
thirty
:x
thirty years
the tradition of the
the politi
politican c,,
increasing pressure from the rival theory
theon 0,,,f- l
pressurq while present since the early
pressure,
earlr Hi;
rr.r;r-r5past decade. By
'traditional' English pu
li - 1-r;
By'traditional'
public
the
- _
the century
century between about
about 1870
r87o and
and Ira;.
period the
period
the relationship
relationship between
between the
rhe co
cour:-i
institutions
men 0r:,:r
institutions of parliamentary
parliamentary govern
governmenr
The abiding
blic la'a
abiding influence
influence over English pu
pubiic
r '
that of Dicey.
Dicey. Dicey was an
an Oxford law
larr' pr,.,x
century whose
whose most famous book, fir
firstt pub
publtduction
duction to
to the Study
Study of
of the Law of
of the
the Cor;_::i
Cilisiii:
the courts should play only a limited role 'r-n I
carefully explained. Dicey's argument
carefully
rr'a-s rlu
argumenr w
\\'as composed of
was
of two cardinal
cardinal rules, whi
t'hich h,
Parliament and the rule of law.
Parliament
law. We
\\-e ha\'e
har e alrc;
these, and we need not say anything
any-thing fur
furrher
rule of
of law that we now need to focus.
Dicey placed great weight on the irn
imporr;
(,:,r
central concept of
of English constitutional
constirurional (0
thought from this that it would follow
tha h,
...
follo*' thar
cate of
of the legal constitution,
constitution, the rule of
of la
lau t
through
which the
legal constirution
constitution wo
through which
the legal
u'ouli
nhile he considered the rule of
while
of law to be cenr
e
content-he
precisely:..h,r_
content-he defined it not only preciselr.
ru le of law meant three things: first, the aab,srule
government should
government
should govern by
by knon
known
r
n rul.:

On Constitutions
Constitutions
On

2r
21

constitutionalism. Suing
Suing may
may be
be expensive,
expensive, but
but itit is
is at
at least
least equalllequally
constitutionalism.
of the
the political
political maiority
majority or
or not-unlike
not- unlike
expensive whether
whether you
you form
form part
part of
expensive
is no
no inherent
inherent discrimination
discrimination in
in
the political
political constitution
constitution model,
model, there
there is
the
of the
the majority.
majority. The
The down-side,
down-side, however,
however, is
is that,
that, unlike
unlike those
those who
who
favour of
favour
democracy hold
hold political
political office,
office, fudges
judges are
are neither
neither democraticalll'
democratically
in aa democracy
England they
they remain
remain overoverelected, accountable,
accountable, nor
nor representative.
representative. In England
elected,
whelmingly male,
male, white,
white, old, upper-middle
upper-middle class
class lawyers.
lawyers. The greater
greater
whelmingly
We shall
shall
their constitutional
constitutional and political
political role,
role, the
the more
more this
this matters.
matters. Wb
their
6.
these issues
issues in
in chapters
chapters 55 and 6.
return to these
Having set
set ouq
out, in
in rather
rather basic
basic terms,
terms, the
the political
political and the
the legal
legal models
models
Having
of constitutionalism,
constitutionalism, we
we can
can now
now begin
begin to apply
apply those
those models
models to English
English
of
law. Which of
of these
these models
models does
does English
English public law
law more closely
closely
public law.
public
resemble? The
The answer
answer to this
this question
question is
is changing.
changing. Traditionally,
Traditionally, English
English
resemblel
been based on the political constitution,
constitution, but over
over the past
past
public law has been
public
under
thirty years the tradition of the political constitution has come under
increasing pressure from
from the
the rival theory of
of legal
legal constitutionalism.
constitutionalism. This
This
increasing
pressure, while present since the early rg7os,
1970s, has only intensified
intensified in the
the
pressurg
am referring
referring (loosely)
(loosely) to
past decade.By'traditional'English
decade. By 'traditional' English public
public law I am
past
about r87o
1870 and
and rgTo.During
1970. During the course of this
the century between about
the one
one hand
hand and
and the
the
period the
the relationship between
between the courts on the
period
of parliamentary
parliamentary government
government on the other was
was broadly
broadly stable.
stable.
institutions of
institutions
T he abiding
abiding influence
influence over English public
public law throughout
throughout this period was
was
The
of Dicey. Dicey was an Oxford law professor
professor in the late nineteenth
that of
book, first published in 1885,
1885, was An Introcentury whose most famous book,
duction to the Study of
of the Law of
of the Constitution.
Dicey's view was that
Constitutioz. f)icey's
,luction
public law. This needs to be
the courts should play only a limited role in public
of the constitution
constitution
carefully explained.
explained. Dicey's argument
argument was that the law of
carefully
of two cardinal
sovereignty of
was
\\
cardinal rules, which he labelled the sovereignty
as composed of
Parliament
Parliament and the rule of law. We have already encountered the first of
these, and
just here. It is on the
and we need not say anything further on it iust
rule of
of law that we now need to focus.
Dicey placed great
as a
great weight on the importance of the
the rule of law as
central
constitutional (or public) law, and it might be
e-entral concept of English constitutional
thought from this that it would follow that he would have been an advocate of the legal constitution,
vehicle
conceptual vehicle
of law being the conceptual
constitution, the rule of
ilirough
itself. However,
would manifest itself
legal constitution
constitution would
rhrough which
which the
the legal
while he considered the rule of law to be central, Dicey gave it a minimal
content
- he defined
but narrowly. For Dicey, the
content-he
defined it not only precisely, but
that
tule
arbitrariness-that
first, the absence of arbitrarinessrule of law
law meant
three things: first,
meant three
gm-ernment
whim or
rather than
than by
by whim
govern by
rules rather
known rules
by known
io\-ernment should
should govern

r:

publicLaw
Law
Public

discrerion;secondly,
secondly;that
thatthere
thereshould
shouldbebeequality
equalitybefore
beforethe
discretion;
thelaw
lawininthe
the
sense
that
there
should
be
no
separatecode
codeororsystem
systemofoflaw
lawwhich
en e that there should be no separate
which
appliedonly
onlvtotothe
publicsector,
thepublic
sector,totothe
government,orortotothe
thegovernment,
theadministraapplied
administration;
and
thirdl-v.
that
civil
liberties
were
besrprotected
protectedby
bythe
tion; and thirdly, that civil liberties were best
theordinary
ordinarv
courtsdetermining
determining questions
questionsof
ofthe
theordinary
ordinarycommon
commonlaw
lawand
andrequired
courts
required
noseparate
separateororspecial
specialcode
codeororbill
billofofrights.
rights.Dicey's
Dicev,sisisaacontentious
contentious
no
account
of
the
rule
of
law,
and
it
should
not
bethought
thoughtthat
thathis
hisview
viewisisthe
account of the rule oflaw, and it should not be
the
only,ororeven
eventhe
thebest
bestone.
one.Dicey's
Dicey'sviews
viewsare
areimportant
importantnot
notbecause
becauseof
only,
of
theirintrinsic
intrinsicmerit,
merit,but
butbecause
becauseof
ofthe
theinfluence
influencethey
thevhad
hadininthe
theperiod
period
their
weare
areconsidering.
considering.le
we
19
It
is
thesecond
second of
ofDicey's
Dicev's three
threestatements
statements about
aboutthe
therule
ruleof
oflaw
law
It is the
which
is
of
significance
here.
Dicey
passionateabout
waspassionate
about the
thecommon
common
which is of significance here. Dicey was
law. One
Onefeature
feature of
of the
thecommon
common law
lawisisthat
thatititapplies
applies both
bothtotothe
public
the public
law.
and
private.
to
the
In
France,
Dicey
saw that
that instead
insteadof
of common
common law
law
and to the private. In France, Dicey saw
there were
wereseparate
separate laws:
laws:civil
civil law
law for
for private
private citizens
citizens and
and administrative
administrative
there
larvfor
for the
the State
State and
and for
for disputes
disputes between
between the
the individual
individual and
and the
the State.
State.
law
Dicev
assumed
that
any
separate administrative
administrative or
public law
or public
law would
would
Dicey assumed that any separate
benefit the
the State,
State, as
as itit would
would act
act as
as an
an immunity
immunity by
by which
which the
the State
benefit
State
could
avoid
being
subjected
to
rhe
full rigours
rigours of
of the
the common
common law.
law. In
In
could avoid being subjected to the full
order to
to seek
seek to
ro prevent
prevenr this
this from
from happening
happening in
in England,
England, Dicey
Dicey argued
argued
order
that itit was
was part
part of
of the
the constitutional
constitutional rule
rule of
of law
law that
that there
there should
should be
be no
no
that
public/private
divide,
and that
thar the
the same
same common
common law
law should
should apply
appl-v
public/private divide, and
equallv to
government and
to government
governed. The
and governed.
The problem
problem with
with this
this isis that
rhar the
equally
the
State
erercises
unique
powet
and if
if aa legal
legal system
system is
is to
to be
be effective
effective in
State exercises unique power, and
in
regulating the
power of
the power
of the
the State,
State, the law
law is
is going to need unique laws to
regulating
to
appl]- to
to the
the State.
state. Thus,
Thus, II may
may decide
decide after
after years of buying my morning
apply
paper
from
one
particular
newsagent
that II am
going to
am going
to change
change to
paper from one particular newsagent that
to a
different vendor.
vendor. II have
have no
no contract
contract with
with the
the newsagent:
newsagent: II am
different
am in
in the
habit of
of buying
buving my
my paper
paper from
from him,
him, but II am not obliged to do so. Thus,
habit
no
legal
action
can
be
taken
against
Suppose now that a local authorno legal action can be taken against me. Suppose
itr
1pn5 aa day-centre
dav-centre for
for the
the elderly
elderly or
or disabled, and
and decides to close it
ity runs
and to
and
to spend
spend the
the money
money it
it will
will save
save on subsidizing bus fares for teen.rEers.. It
It might
might be
be thought
thought that
that such
such aa decision
decision should
should be subject
subject to legal
Jger
.rction
er
en
if
an
analogous
1 tion eyen if an analogous decision
decision which
which was wholly
wholly private would not
br.. It
It might
might be
be thought
thought that,
that, even
even in
in the absence of
of a contract, or of
.\press
reliance,
the
courts
expr
reliance, the courts ought
ought to
to be able judicially
judicially to review
review the
the
tairness
of what
what the
the local
local authority
authority is
is proposing
proposing ro
to do.
do.
arrne and
and the
the legality
legality of
'" Further
Further consideration
consideration of
of what
what the
the rule
rule of
of law
law means
means in
in contemporary
contemporary public
public law
law isis
grrcn in chapters and 6.
giyen in chapters 33 and 6.

On
,_
OnConstitlltil;
Constitu!t,,r'.

Yet,
}'et,such
sucha aprocedure,
procedure,which
whichwould
wouldappl.
applr r,.
sion
day-centre,
but
siontotoclose
closethe
the day*centre, butnot
nottotothe
theI I
buy
newsagen
buyhis
hispaper
paperfrom
froma adifferent
different ne\\'sasenrDicey's
rule
of
la
.
Dicey'sunderstanding
understanding ofofthe
the rule of lar..
should
.
shouldbe
becommonality,
commonality, rather
ratherthan
thand'disrin,
private.
private.
Because
.
Because Dicey's
Dicey'sviews
viewswere
weresosoinf1uen
inlluenrui
public
were
excep
publiclaw,
law,courts
courtsininEngland
England were e\ce prrr- r
ciples
ciplesof
ofadministrative
administrativelaw,
law,that
thatisistotosay
sar.pn.::
pnno
administration
not
administration (or
(orgovernment)
government)but
but nottoro pr
equence, the
sequence,
thelegal
legalconstitution
constitution struggle
strurgled 0t,_,
idea
The
onus
ee ':
ideaof
ofEnglish
English public
public law.
law. The onusof
of serkin
ment
central)
to
con
titu
.
ment(whether
(whetherlocal
localor
or central) to constiruti,_,i
the
political
institutio
the courts,
courts,but
but with
with the
the political institutioni
the
the ballot
ballot box.
box.
This
til -r
This remained
remained broadly
broadly the
the position
position un
unril
the
courts
has
grown
'"'"
the
the public
public law
law role
role of
of the courts has grou n rren
nor
this
development
nor the
the significance
significance of
of this development sF
Indeed,
in Indeed, the
the move
move witnessed
witnessed in
in England
England since
ed
ly since 1990,
political
to
the
lega
edlr-since
r99o, from
from the
the political to the legaj
of
of the
the most
most fundamental
fundamental realignments
realignments of
oi rhr
the
the end
end of
of the
the seventeenth
seventeenth century.
centurr-. EYen
Eren -rFrt
in
- significan I
rn the
the early
early twentieth
twentieth century
century-significenr
:-e,,"Tite
ren rite the
the unwritten
unwritten constitution
constitution to
to such
such an
Yer-used
happening.
,-rr
er-used but
but aa revolution
revolution is
is happening. The
Thc i
and
who are grabbing it.
and it
it is
is the
the judges
fudges who are grabbing it.
There
There are
are three
three causes
causes underpinning
underpinnine fi.
.:onstitutional
;onstitutional order.
order. The
The first
first is
is Europe.
Europe. Srn
I-illlgdom
to
the
Kingdom belatedly
belatedly acceded
acceded ro rhe European
Europeen E
E
law has
had
a
considerable
im
:hen
*ren was,
was, EC
EC law
has had a considerable impacr
ter chapters
chapters will
will spell
spell out
out in
in more
more detail
de w l
;rter
but two.
two. The
The second
second Europe
Europe is
is rhat,_,i
tha 0 '
urope but
Europe
n Human
Human Rights
Rights (ECHR).
(ECHR). Formallr,
Formally, this
this Eur,
E ,-rn
- e EC.
EC. The
The ECHR
ECHR is
is a
a rrearv
treaty established
establ' h r
fie
of Europe,
Europe, an
an international
international bodr
body q n:
Council of
Cruncil
EC currently
currently has
has fifteen).
fifteen). Whereas
Whereas EC
EC leu
law is
'-
EC
'' Lsion
of the
the European
European Court
Court of
of Ju ti e ,EE
. ion of
Justice
~ G1R is
is enforced
enforced by
by the
the European
European Courr
Cour r,,i'
ECHR
Strasbourg. The
The UK
UK has
has been
been aa sisnarr..,r.
signato"
m Strasbourg.
drawn up
up in
in r95o,
1950, but
but has
has onlronly relatir
rela n 'e
irstt drawn
rl.."
J'

- '!"

On Constitutions
Constitutions
On

23
23

Yet, such aa procedure,

procedure, which
Yet,
which would apply to
to the
the local
local authority's
authoritv's decision to
to close
close the
the day-centre, but not
sion
not to
to the
the private citizen's decision to
buy his
paper from
his paper
from aa different
different newsagent,
newsagent, would
buy
would apparently
apparently violate
Dicey's understanding of
Dicey's
of the
the rule
rule of
law, which
of law,
which insisted
insisted that
that there
should be
public and
be commonality,
commonalit-v. rather
rather than
should
than distinction,
distinction, between
between public
private.
Because Dicey's
Dicey's views
views were
Because
were so
so influential
influential as
as aa statement
statement of English
law, courts in
in England were exceptionally slow
public law,
slow to
to develop
develop prinof administrative law, that is to say, principles which apply to public
ciples of
government) but not to
administration (or government)
to private individuals. As a consequence,
legal constitution
constitution struggled to
equence, the
the legal
to take
take hold
hold as
the animating
as the
idea of English public law.
law. The onus of seeking ways
ways to hold the
the government (whether local or central) to constitutional account rested not with
courts, but with the
the courts,
the political institutions,
institutions, with Parliament,
Parliament, and
and with
the ballot box.
This remained broadly the position until the early
This
early 1970s.
rg7os. Since then
grown remarkably. Neither the extent
the public law role of
of the courts has grown
nor the
the significance
nor
significance of
this development
development should
of this
should be
be under-estimated.
under-estimated.
England since 1970,
r97o,, and even more markIndeed, the move witnessed in England
edlv since 1990,
political to the legal constitution
r99o, from the political
edly
constitution represents one
oi the
the most fundamental realignments
realignments of the constitutional
of
constitutional order since
rhe end
end of the
me
the seventeenth century.
century. Even
Even the emergence of democracy
m the
the early
early twentieth
century-significant
ill
significant though
was - did not
twentieth centurythough that
that was-did
ren rite the unwritten constitution to such an extent.
rewrite
extent. The word is much
,-rr-er-used but a revolution is happening.
happening. The constitution
oyer-used
constitution is up for grabs,
and
m
d it is the judges who are grabbing it.
There
are three
three causes
causes underpinning
T
here are
underpinning the
the collapse
collapse of the
the Diceyan
Diceyan
constitutional order.
order. The first
first is Europe.
Europe. Since
:onstitutional
Since 1973,
t973, when
when the United
Kingdom belatedly
hillgdom
belatedly acceded to the European Economic Community, as it
Ihen
impact on domestic
:.:
en was, EC law has had a considerable impact
domestic public law, as
as
hter
chapters will
will spell out
out in
in more
more detail.
ter chapters
not one
detail. Legally,
Legally, there
there is
is not
Europe but two. The second
European Convention
second Europe is that of
of the European
,-rn
(ECHR). Formally, this Europe
Europe has nothing to do with
"a Human Rights (ECHR).
EC. The ECHR
ECHR is
is aa treaty
.ne
e EC.
treaty established under
under the
the auspices
auspices of the
an international
Council of Europe, an
international body with forty-one
forty-one members (the
EC currently
currently has fifteen). Whereas EC law is enforced under the super~C
super-rsion
(ECJ) in
'-ion of the
the European
European Court
Court of Justice
Justice (ECJ)
Luxembourg, the
in Luxembourg,
ECHR
- Q-{R is
is enforced
enforced by the European
European Court of Human Rights (ECIHR)
(ECtHR)
r Srrasbourg.
of the ECHR since it was
trasbourg. The UK has been a signatory of
*rst
r95o, but has only relatively recently incorporated the
- -.:~ drawn up in 1950,

On
OnConstitutior._
Constiturl,,t,-

.:'- --:"L :-.:::: :- _.- L,,,r,rnti,rn

intodomestic
domesticlaw
(byvirtue
law(by
:i' ~ on into
virtueofofthe
the
il*-r.ir- Rri:L. \.: :i-ir Tha
That- .aid.
bothEuropes-the
Europes-theEC
id both
ECand
andthe
the

Et.-i-{R-hart maie a prL,tl-fund

conriburion torothe
thereshaping
reshapingofofEnglish
~ fo und contribution
English
ruhhc le* srrlcrthe
theearly
earlrI r97os.
onesuch
suchcontribution
contribution has
70. One
hasbeen
beentoto
enc,:rurage the
thejudiciary
plaraagreater
iudi.ran totoplay
greaterconstitutional
constitutionalrole.
role.We
encourage
Wewill
will

erplorethis
rhisiningreater
srearerdetail
detailininlater
laterchapters.
chapters.
explore
The
second
cause
of
theshift
shiftfrom
fromthe
thepolitical
politicaltotothe
thelegal
legalconstitution
The econd cause of the
constitution
thatthe
thepolitical
politicalconstitution
constitutionhas
hascome
cometotobe
bewidely
widelyseen
isisthat
seenasashaving
having
brokendown.
down.Ministers,
Ministers,ititisisfelt,
parliafelt,are
arerarely
rarely held
heldtotoaccount
account by
broken
byParliament. Parliament
Parliament isisno
nolonger
longerable
abletotodo
job-the
doits
itsconstitutional
constitutional jobthe execument.
executive
grown too
has
toostrong
strongand
and the
thedomination
dominationof
politicalparty
of political
partyhas
tive has grown
has
effectivelyundermined
undermined the
theindependence
independence from
from government
governmentwhich
effectively
which nonnongovernmental,back
backbench,
politicians had
hadformerly
formerly regarded
regarded themselves
governmental,
bench, politicians
themselves
as
having.
Were
notfor
for the
thecourts
courts coming
coming to
to the
therescue,
rescue, the
thegovernment
government
as having. Were itit not
would have
have spun
spun out
out of
of control,
control, and
and the
the first
first task
task of
of the
the constitution
constitution-to
- to
would
hold
the
politically
powerful toro accountaccounr-would
performed by
be performed
hold the politically powerful
would be
by
20
nobody: constitutional
constitutional government
government would
would have
have ended.
ended.2O
nobody:
The third
third cause
cause was
was that
that the
the judges
changed. Dicey's
Dicey,s influence
influence waned
The
waned
iudges changed.
in
the
academy
long before
before itit withered
withered in
in the
the court-room,
court-room, and
in the academy long
and by
by the
the
r97os lawyers
lawyers were
were being
being appointed
appointed to
to the
the bench
bench who
who had
had been
been educated
1970S
educated
in law
law schools
schools which
which no
no longer
longer incanted
incanred Dicey's
Dicey's views
views uncritically.
uncritically. As
As the
in
the
academic
interpreration
public law
of public
law developed,
developed, so
so too
roo gradually
gradually did
did the
academic interpretation of
the
begin to
to move
move out
out from
from under
under the
iudges begin
the Diceyan
Diceyan shadow.
shadow. Even
Even the
judges
the law,
law
eventually,
managed to
pull itself
to pull
itself out
out of
of the
the nineteenth
nineteenth century.
cenrur\,.
eventually, managed

FROM POLITICS
POLITICS
FROM
AS A
A
AS

TO LAW:
LAW: FIRE
FIRE BRIGADES
TO
CASE_STUDY
CASE-STUDY

This issue,
issue, namely
namely the
the changing
changing relationship between the
rhe politics and the
This
larv
of
the
constiturion,
forms aa major theme of this book,
law of the constitution, forms
book, to which we
shall
of the
the chapters
hall rerurn
return in
in many
many of
chapters that follow. For the remainder
remainder of
of this
chapter. ne
chapter,
we shall
shall consider
consider in
in detail
detail aa single case, decided by the House
House of
Lords
Lord i,
in ,9g5,,
I995, taking
taking itit as
as aa case-study
case-study of
of the contemporary
contemporary shift
shift in focus
tiom
political
from political to
to legal
legal accountability.
accountability. Our case
case is called R av Secretary of
Srare
tate -fbr
for the
the Home
Home Department,
Department, ex
ex pa,rte
parte Fire Brigades
Brigades (Jnion,
Union. 21 In ii
it the
House
of
Lords
held that
that the
the Home
Home secretary,
Secretary, Michael
Michael Howard,
Howard, had
had
House of Lords held
-'The argument that the political constitution
20 The argument that the political constitution has
has broken
broken down,
down, and
and that
that partv
party has
has
conrributed
to
contributed
to the
the breakdown,
breakdown, isis considered
considered at
at greater
greater length
length in
in chapter
chapter 5.5.
t'
2! I1995]
[1995] z2 AC
AC 54.
513.

acted
:-\
actedunlawfully
unlawfullyininattempting
amempringtorouse
usehis
his pr,
changes
in
the
system
of
compensa
ting
~l
changes in the system of compensating r l.l:
scheme
- re ~ schemefor
forthis
thispurpose
purposehad
hadbeen
beenininex
erisrcn.
operated
under
the
prerogative
po\yer
of
operated under the prerogative porver oi mel
I988
.-r988Parliament
Parliamenrpassed
passedthe
theCriminal
CriminalJus
_|usrrcr
new,
statutory,
-_
which
were
to
introduce
a
u-hich were to introduce a new; starutor\. s\-- s.
rogative
rogative scheme.
scheme.The
TheAct
Actreceived
receivedits
itsroy
ro-r al a
relevant
sections
of
the
Act
did
not
relevant sections of the Act did notcome
corrri?lir
commencement
_
commencement provision,
provision,section
section 171
r7lofoithe
the \~ant
'shall
come
into
force
on
\antprovisions
provisions 'shall come into force oD Sr_ir
State
State may
may...
. . .appoint'.23
appoint,.23
By
1993
the
By rg93 thestatutory
statutory scheme
scheme had
hadstill
still no
not ~ r
December
of
that
year
Michael
Howard
(
e
December of that year Michael Hou.ard tthr
sible)
published
a
White
Paper24
on
C
.
_.
sible) published a White paperra on C,,r,;11
Crime:
Changes
to
the
Criminal
Injuries
Co
.~
Crime: Changes to the Criminal Injuries Ctrn:!,._
new
nerv (third)
(third) system
system was
was outlined,
outlined, whereby
x herebr aa,*
tariff
according
to
the
injuries
receiyed
tariff according to the iniuries receir ed witho
u irhr_,ur
payments
. 5_
pavments being
being made
made for
for loss
loss of
of ear
earnin*s
,tarifl
ex
penses.
This
so-called
'tariff'
scheme
wo
e\penses. This so-called
scheme sc,u-j
cient.
cient. The
The White
White Paper
Paper stated
stated that
that eyen
even th
rhr_rl-r,
me
Criminal
Justice
Act
1988
for
the
rhe Criminal Justice Act rg88 for the sche
,.h..n. i
Doting ...
t-ooting
. . . with
with the
the impending
impending demise
demise of
oi t_t-r.e.-ions in
the
1988
Act
will
not
now
be
impl.?
n
in the rgSB Act will not nov be inpbnic,:;,
'tons
repealed
a
suitable
legislative
op
repealed when
when a suitable legislative opporrur
cheme came
came into
into force
force in
in April
April 1994.
rgg+. The
The FFu'cheme
jud
icial
review
of
the
Home
Secretary
s
.~
iudicial review of the Home Secretarr's con
conrin
e
relevant
provisions
of
the
Act
into
force
ihe
provisions of the Act into force an,
ment the
tariff
scheme.
The
House
of
Lor
the tariff scheme. The House of l_or,ls ho
two
io two that
that the
the Home
Home Secretary
Secretary had
had acte
acteJ uL-l
Yilkinson,
Lloyd,
and
Nicholls
constitute
\\ ilkinson, Lloyd, and Nicholls constirute,l
r-1

.:2-

Prerogative powers
powers are
are considered
considered in
in more de Prerogative
more ilsr::l ::.

wers are
are common
common Iaw
law powers
powers which
which are
are enjolcd
enjoyed ~
];\rcrS
br 16

narch or
or by
by her
her Ministers.
Ministers.
:1,rnarch

There isis nothing

nothing unusual
unusual in
in this.
this. Merelv
Merely because
-':; There
bec:ust

an

1.:

md has
has received
received the
the royal
royal assent
assent does
does not
not mean
mean tha.r .
ind
th;r ,r .,

::m power the

the government,
government, in
in the
the form
form of
of a Secretary ,;i- - - .
:rrrpou'er
a Secretan
S;_i;,
the -{.ct
Act should
should come
come into
into force.
force. The
The Human
Human Ri~t5 _.
~
. ff" the
R.rghu r.c .
:Ully into
into force
force until
until October
October zooo,
2000, and the F ~
:Jlv
and the Frrc,l,_,n"r _,:
to come
come fully
fully into
into force
force undl
until zoo5.
2005.
h;duJed ro
- -heduled
:<
White Paper
Paper isis aa documenr
document setting
setting oti,
out gor..r.,.n..,
go\"eTnm~ - -.
' \.\ White
,,
~ nor
not have
have to,
to, precede
precede legislation.
legislation.
:,,
-':; Cm.2434,
Cm. 2434, para.
para. 38, emphasis
emphasis added.
added.
38,