Constitutionalising Political Parties in Britain

Constitutionalising Political Parties in Britain Jongcheol Kim Department of Law London School of Economics and Political Science UMI Number: U117335 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Dissertation Publishing UMI U117335 Published by ProQuest LLC 2014. Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 Constitutionalising Political Parties in Britain A Thesis Submitted to the University of London for the Degree of Doctor of Philosophy by Jongcheol Kim (LL.B., LL.M.) Department of Law London School of Economics and Political Science 1998 S F 75S2 70/43Z Preface When almost five years ago I came to London to study British public law, I had no specific topic in mind that might form the basis for my Ph.D. course. I came with no particular background in British law, but having studied American constitutional law, the oldest written constitution in the modem world, I have decided it would be of considerable interest to further my understanding of modem constitutionalism by looking at the oldest example of an unwritten constitution. My knowledge of British public law was, then, extremely shallow and came almost exclusively from translating into Korean A.V.Dicey’s classic work,An Introduction to the Law o f the Constitution. While studying during my LL.M. year in London the contemporary issues concerning the UK government and constitution together with the underlying social, intellectual and legal history of Britain, I realised that the British constitution was in a state of flux and that constitutional reform would be likely to play an increasingly important part in the future of British politics and public law. The British constitution has come under attack mainly because the political conventions, which sustain it, have become both outmoded and unworkable in the pluralised society of today. Constitutional reform is an attempt to modernise the British constitution in such a way as to enhance democratic governance in both theory and practice. In studying this new trend, my interest has shifted somewhat from a model which was once widely admired to the question of how a new system of government might best be conceived, corresponding to Britain’s present and future needs. This dissertation is intended as an attempt to substantiate this new concern. It focuses on a single institutional element, which runs right through every important aspect of the constitutional reform agenda in Britain. This element is political parties. The system of parliamentary government in Britain is one of party government. Political parties are “the chief motivating force of our main governmental institutions” (Crowther-Hunt and Peacock 1973 [Cmnd 5460-1]: para.311) so that any scheme for constitutional reform must concern itself with political parties. In this dissertation, I attempt in the context of Britain to thematise a third way of democracy beyond liberalism and communitarianism and to 2 outline the proper nature and role of political parties in this new paradigm. It will be obvious to the reader that I try to defend the classical notion that democratic governance is unthinkable without political parties, while redefining their nature and role in the democratic process. Just before the 1997 general election, I finished an early draft of this dissertation, concluding that there is a need for the constitutionalisation of political parties as part of the modernisation of the British constitution. Happily, since ‘new’ Labour’s victory in that election, movement towards the constitutionalisation of political parties is gaining momentum in British politics. A series of referenda and supporting legislation confirm that there will be a separate Scottish Parliament and a separate assembly for Wales to be elected by the Additional Member System. A commission chaired by Lord Jenkins of Hillhead was set up to recommend the acceptable alternative to the present first-past-the-post system in general elections. The European Election in June 1999 will adopt the party list system. The remit of the Committee on Standards in Public Life was extended to cover a study of the funding of political parties and it is most likely that the Committee will recommend the introduction of regulation of party finances. In addition, since the debacle of the 1997 election, the Conservative Party has discarded its archaic, informal structure, which reflected the British constitution in miniature. All these changes make the constitutionalisation of political parties indispensable to the process of political modernisation of Britain. I believe that this study of British constitutional reform will also have some significance for other democracies, especially those countries, like my homeland, the Republic of Korea, which are in transition from authoritarian rule to democracy. Lessons from another country, of course, must be seen through the prism of the political, legal and cultural specificity of the countries concerned. I owe the greatest thanks to my supervisor, Mr. W. Tim Murphy of the London School of Economics and Political Science (LSE) for his continual support and constructive guidance since my LL.M. year in London. Indeed, his recognised command of both socio political theory and law was the major reason for my decision to turn down a place at an equally distinguished institution and continue my studies at LSE. I am greatly happy to acknowledge that his invaluable supervision of this study and generous encouragement has proved that decision to be the right one. I should like to thank Professor Gunther Teubner for his insightful suggestions and encouragement on various occasions regarding my 3 project for constitutionalised democratic autonomy and its implication for the democratisation of political parties. I should also like to thank Professor Carol Harlow for her general comments on parts of an early draft of this dissertation. I am greatly indebted to Professor Kyong Whan Ahn of Seoul National University for his heartfelt concern and encouragement, which since my LL.M. years in the Seoul Law School has been more than that of a teacher, though I suspect gratitude will not be enough. I must also express my gratitude to the Government of the Republic of Korea for funding the first three years of my research with a National Government Scholarship and to the British Government for covering my tuition fees over the first two years of my study with a British Foreign and Commonwealth Office Scholarship. I should like especially to thank the Rt. Revd. John A. Hardy for showing me throughout this research friendship and tolerance. John also helped me edit and correct the late draft of this dissertation. In addition, Philip Chang has proofread a couple of chapters of an early draft and Neil Weston has kindly provided me with some important materials published by the main political parties. I am deeply grateful to them all. Finally, I should like to thank my mother, my in-laws, my wife Nan Kyoung, and last, but not least, our beloved son and daughter, Tae-Hyoung and Hyojin, for all their support and patience. 4 Abstract Although Britain has developed a reasonably successful model of party democracy, there is little legal recognition of political parties in the constitutional order. My hypothesis is that the legal status of political parties relates to deep-seated political and social theories subsisting in British society. Britain’s self-regulating political parties still adhere to the liberal theory of parliamentary democracy. However, there is increasing dissatisfaction with thisstatus quo, which tends to ignore the pluralist reality. Therefore, demands are now being made for the creation of a new theory of democracy and for a range of constitutional reforms which such a theory requires. I propose to adopt a model of double democratisation which implies a refocusing of the liberal distinction between state and society. This model develops an equilibrium between state and society within a constitutional framework which can be called ‘constitutionalised democratic autonomy’. I seek to argue that all agencies of power should be regulated within a constitutional framework which allows public scrutiny of the political system as a whole while affording, on the one hand, the greatest measure of freedom to civil society and, on the other, parity of autonomy to the state. The fact that political parties now play a powerful role within the state adds additional urgency to the task of reformulating the democratic agenda. In connecting a new perspective on political parties to the reformulated theory of democracy, the dual relationship of political parties to the state and civil society,i.e., their character both as a social sphere and as a political sphere, will be stressed. Based on these theoretical arguments, this dissertation critically analyses British law relating to political parties and maintains that there is a need for the legal institutionalisation of political parties. It discusses various possibilities for the constitutionalisation of political parties, which are envisaged

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