Constitutional Revolution in the United Kingdom

Michael Foley. The Politics of the British Constitution. Manchester, England and New York: Manchester University Press, 1999. viii + 296 pp. $69.95, cloth, ISBN 978-0-7190-4552-3. Reviewed by Michael Les Benedict Published on H-Law (October, 2000) Constitutional Revolution in the United King‐ ability to respond quickly to economic and social dom challenges, its direct lines of administrative au‐ The American and British constitutional tra‐ thority, and its freedom from hamstringing over- ditions diverged radically in the era of the Ameri‐ legalization. By the second half of the twentieth can Revolution. Americans and their numerous century the British and American constitutional but politically marginalized British allies adhered systems were about as different as different can to the traditional English notion that government be. Although the U.K. and the U.S. shared a com‐ was constrained by fxed constitutional rules and mon-law heritage, the American system had far principles; they denounced the influence that the more in common with those of civil-law democra‐ Crown exercised over the legislative branches of cies. the government. After the Revolution, the former But the United Kingdom is now in the midst colonists proceeded towards popular sovereignty; of the most fundamental and far-reaching consti‐ a fxed, written constitution that limited govern‐ tutional change since the Reform Act of 1832, and mental powers; federalism; separation of powers possibly since the Glorious Revolution of 1688. All with checks and balances; and judicial review. but a selected handful of the hereditary peers The United Kingdom continued along its new con‐ have been ousted from the House of Lords, giving stitutional path towards parliamentary sovereign‐ a majority to its appointed members.[1] The gov‐ ty unconstrained by a fxed constitution or judi‐ ernment seems to be committed to making the cial review, centralization, and the conflation of second chamber elective as well as appointive, al‐ executive and legislative power. As judicial re‐ though it has not yet arrived at the relative pro‐ view became a more and more prominent ele‐ portions. Power in wide areas of public policy has ment of American constitutionalism, British con‐ been devolved to a new Scottish Parliament and a stitutional and political commentators noted with Welsh Assembly; the legislature of Northern Ire‐ satisfaction the fexibility of their own system, its land, which exercised similar powers until its dis‐ H-Net Reviews solution in 1972, has been revived.[2] Proportion‐ Some of these changes -- especially those re‐ al representation has been introduced into elec‐ lated to Britain's membership in the EU and ad‐ tions for the devolved legislatures and the Euro‐ herence to the ECHR -- have been evolving over pean Parliament, and may be incorporated to the past three decades. But others -- the recon‐ some degree into elections for the Westminster struction of the House of Lords, the devolution of Parliament. power to regional legislatures, and the passage of While the kingdom itself trends towards fed‐ the Human Rights Act -- are the culmination of de‐ eralism, the European Union (EU) is developing a mands for constitutional reform that grew in the de facto constitution out of its constituent treaties 1980s and 1990s, revolutionizing British attitudes and their amendments, moving towards a Euro‐ towards their constitution. In The Politics of the pean federalism, with institutions, including the British Constitution, Michael Foley, a political sci‐ European Court of Justice, that can nullify nation‐ entist at the University of Wales, Aberystwyth, de‐ al administrative decisions and instruct even scribes this revival of constitutional politics in the "sovereign" parliaments to change their laws.[3] United Kingdom. Although it does not provide a Indeed, Parliament has authorized British courts complete picture of Britain's current constitution‐ to refuse to enforce subsequently passed British al revolution, Foley's study is a good place to start laws that are inconsistent with the regulations of for a concise overview of British constitutional the EU,[4] and the courts have exercised this au‐ scholarship over the past century and current thority to void a parliamentary statute,[5] raising controversies. deep questions about the continued vitality of In his frst, introductory chapter, Foley de‐ parliamentary sovereignty.[6] Britons can appeal scribes the complacency that characterized popu‐ government laws and actions to the European lar and critical thought about the constitution in Court of Human Rights, an institution separate the mid-twentieth century. Britons, he reports, from the EU, which can reverse the actions and were content to describe their constitution in pronounce the laws inconsistent with the Euro‐ much the same terms that the great Albert Venn pean Convention on Human Rights (ECHR). The Dicey had used in the many editions of his Intro‐ Convention mandates that signatories abide by duction to the Study of the Law of the Constitu‐ the decisions of the Human Rights court. A new tion, which frst appeared in 1885.[8] In contrast Human Rights Act[7] goes into effect this month to the American constitution, the British constitu‐ (October 2000), incorporating the Convention into ton was primarily descriptive rather than pre‐ British law, enforceable in British courts. They scriptive. It amounted to the sum of the laws, cus‐ will have the power to nullify administrative acts toms, and traditions that determined how Britain and those of local governmental authorities. The was governed. Its general principles were well un‐ law authorizes judges to pronounce even parlia‐ derstood and sustained by a general consensus. mentary enactments incompatible with the Con‐ Since there was little if any prescriptive content -- vention, forcing a legislative review, although Par‐ and what prescriptive content there was not legal‐ liament is not bound to repeal or revise them. In ly sanctioned -- there was slight opportunity for the course of adjudicating cases challenging gov‐ constitutional rhetoric. The "axiomatic authority ernment acts for violating the Convention, the and fnality" of the constitution's "core value" of courts are required by the Human Rights Act to parliamentary sovereignty "pre-empt[ed] the treat decisions of the European Court of Human need for, and the relevance of, constitutional de‐ Rights as precedential authority. bate," Foley explains (p. 4). Politicians, commenta‐ tors, and the public all came to see claims that government acts violated constitutional principles 2 H-Net Reviews to be empty rhetoric. The constitution's fexibility Lords -- in restraining democratic enthusiasms. was its virtue; constraints would obtruct effective But it was Dicey, the Publius of the modern British government. This consensus began to break down constitution, who offered a reassuring analysis. in the 1970s, and, unlike previous spasms of con‐ The sovereign Parliament was unconstrained by stitutional criticism, the reform movement gath‐ law, but the practical exercise of power was con‐ ered strength over the following decades. "Inter‐ strained by the constitutional principle of "the est in constitutional issues can no longer be dis‐ rule of law." This principle required that govern‐ missed as either intermittent pulses of popular ag‐ ment act only as authorized by law, according to itation prompted by temporary political frustra‐ the principles of the common law that protected tion, or the effect of an intellectual avant garde at‐ individual rights. It required that government of‐ tempting to substitute genteel constitutionalism ficers be subject to the same legal actions as ordi‐ for 'real politics,'" Foley reports. In fact, constitu‐ nary citizens, who therefore could bring suit tional politics "has become synonymous with the when damaged by abusive official conduct. Com‐ real politics of the 1990s" (pp. 7-8). Foley's cita‐ mitment to the rule of law pervaded Britain, espe‐ tions are an excellent guide to the literature both cially the educated classes that actually governed, of complacency and of recent challenge. providing a guarantee against arbitrary govern‐ In his second chapter, Foley describes the ment. Finally, Dicey pointed to constitutional "con‐ British constitutional tradition, beginning essen‐ ventions" -- traditional customs, rules, and behav‐ tially with the Glorious Revolution of 1688, which ior that had come to be considered fundamental established parliamentary supremacy (and, in to the governmental order. These could not be en‐ time, parliamentary sovereignty), the system from forced by law, but the ruling elite's code of honor‐ which present constitutional arrangements able conduct, reinforced by popular commitments evolved. Foley points to the ubiquity of constitu‐ that could be enforced at the ballot box, discour‐ tional rhetoric during the succeeding century. Ig‐ aged violations. noring lingering notions that the constitution im‐ Foley describes criticism of the Diceyan for‐ posed fxed constraints on government, he stress‐ mulation, discussing especially the contributions es the centrality of the concept of "balance," of Sir Ivor Jennings, the only later commentator to which Montesquieu described as the principal approach Dicey's influence, and those of Harold safeguard of British freedoms. Such critics of gov‐ Laski and J.A.G. Griffith. All three criticized ernment as Henry St. John, Viscount Bolingbroke Dicey's stress on the rule of law, arguing that it consistently

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