Michael Foley. The Politics of the British Constitution. Manchester, 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 diferent as diferent 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 infuence 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 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 , 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 confation 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 efect 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 efective But it was Dicey, the Publius of the modern British government. This consensus began to break down constitution, who ofered 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 efect of an intellectual avant garde at‐ individual rights. It required that government of‐ tempting to substitute genteel constitutionalism fcers 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 ofcial 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 infuence, and those of Harold safeguard of British freedoms. Such critics of gov‐ Laski and J.A.G. Grifth. All three criticized ernment as Henry St. John, Viscount Bolingbroke Dicey's stress on the rule of law, arguing that it consistently charged that overweening executive merely justifed the penchant of judges to inter‐ infuence threatened . The debate shifted to pret progressive legislation narrowly. popular representation by the turn of the nine‐ Foley demonstrates Dicey's continued, perva‐ teenth century and culminated in the Reform Act sive infuence. But he fails to see how fundamen‐ of 1832, which began the process that led to uni‐ tally the Jennings-Laski-Grifth critique afected versal male sufrage in the 1880s and full democ‐ the understanding of the Diceyan constitution. racy in the frst decades of the twentieth century. They, more than Dicey, are responsible for the A democratically elected, sovereign (and thus prominence of unconstrained parliamentary unconstrained) Parliament raised concerns about sovereignty in mid-twentieth-century British con‐ democratic despotism. Walter Bagehot stressed stitutional thought -- and the attenuation of the the importance of the "dignifed" elements of the rule of law and conventions as constraints on that constitution -- the monarchy, the rituals, the sym‐ sovereignty. They provided the theoretical justif‐ bolism (and restraining power) of the House of cation for the popular reaction against restrictive

3 H-Net Reviews judicial construction of social and economic legis‐ Having found the "constitutional fuels" dis‐ lation, which led to the exaggerated restraint that connected from one another, Foley is not sur‐ characterized the mid-twentieth century British prised that the various reform proposals are simi‐ judiciary.[9] Moreover, Foley concentrates exclu‐ larly disconnected. In chapter 4 he identifes six sively on constitutional commentators. He does principal proposals: a bill of rights, devolution of not discuss constitutional doctrine expounded in authority from the central to local government, the courts, which established Dicey's interpreta‐ reform of the electoral system, legislation to se‐ tion, as glossed by Jennings and his heirs, as con‐ cure , reform of the House stitutional law. of Lords, and the creation of a written constitu‐ Having established this baseline, Foley goes tion. Integrated by no constitutional philosophy, on in chapter 3 to describe what he calls the "con‐ these discrete proposals respond in varying de‐ stitutional fuels" that have fred the engine of re‐ grees to diferent concerns. form. He identifes ten of these, ranging from elec‐ Calls for a Bill of Rights, for example, respond toral inequities that have allowed governments primarily to government excesses and misuses of receiving a minority of the total vote to gain power and to excessive secrecy, and secondarily strong majorities in Parliament, to government to concerns about centralization and to the conse‐ excesses and abuses, excessive centralization, cor‐ quences of membership in the EU and adhesion to ruption and personal misconduct, such longstand‐ the ECHR. Devolution, on the other hand, re‐ ing anomalies as the continued existence of the sponds primarily to over-centralization, the in‐ monarch and the House of Lords in a democratic equity of the electoral system, and the excessive society, and the efect of Britain's adhesion to the exercise of power that many Britons perceived in ECHR and membership in the EU. These fuels are the Thatcher government's dismantling of local largely independent of one another, he argues, authorities. creating a general sense of constitutional crisis Despite the disparate nature of the constitu‐ but providing no over-arching theory of what is tional problems and proposals to deal with them, wrong, and consequently no general remedy. reformers have worked to establish some com‐ They also raise constitutional issues in diferent mon thread. Foley refers to diferent rationales ways and with diferent degrees of intensity. for reform, although it would be more accurate to Some suggest structural problems while others in‐ say he has discerned diferent tropes in the volve disturbing behavior; some involve long- rhetoric of constitutional reform. Reformers have time constitutional structures or principles while argued that constitutional change is needed to others have developed more recently; some in‐ counteract a general deterioration in the account‐ volve particular events and generate specifc reac‐ ability and restraint of government. Foley calls tions and reform proposals; others appear to in‐ this the "preventionist" rationale (p. 115). He also volve more general problems, raising systematic discerns a less alarmist "correctionist" rationale, criticism and suggesting the need for systematic designed either to restore a lost commitment to change. Some events have precipitated intense re‐ constitutional understandings or to modernize a actions, while other calls for reform have been re‐ constitution that is no longer appropriate for sponses to more general conditions. Foley's cate‐ modern conditions. Finally, Foley fnds an "instru‐ gories seem vague and inadequately articulated. mental" rationale that suggests that reforming the A historian is likely to fnd the political scientist's constitution would revitalize British society gen‐ efort to schematize the issues along these lines erally, especially the economy. Again, Foley's cita‐ forced and not very useful.

4 H-Net Reviews tions provide an excellent entree into the contem‐ Defenders of traditional constitutional ar‐ porary literature. rangements ofered spirited rebuttals. Foley re‐ Foley also concisely describes the diferent counts their eforts to counteract the growing re‐ agencies promoting reform. Some pressure form movement in chapter 5. As he did in describ‐ groups have urged specifc reforms for many ing the reformers' rationales and techniques, Fo‐ years -- for example, the Electoral Reform Society, ley categorizes the defenses. There is a positive which has long campaigned for proportional rep‐ defense of the virtues of the traditional system; resentation in Parliament. Professional organiza‐ there is a "concessionary defence" (p. 163) that ad‐ tions of civil servants and local government of‐ mits shortcomings but proposes only minor revi‐ cials have blasted governmental abuses and inef‐ sions. Then there are "negative defences" (p. 170) fciencies. Labor unions, long suspicious of consti‐ that attack the intelligence and motivation of the tutional agitation as refecting mere bourgeois critics or warn of the unforeseen consequences of concerns, joined the campaign by the 1980s. tinkering with fundamentals of the system. None Think tanks, like the Institute for Public Policy Re‐ of these techniques have proved efective. search, have promoted various reforms. Funding Although a historian will fnd these chapters agencies and business corporations have support‐ informative about recent British constitutional ed research and agitation. Leading judges have history, she or he may fnd the efort to analyze by criticized the weakness of legal defenses for civil categorizing and schematizing less efective than liberty in the United Kingdom, some of them call‐ a historical approach would have been. Foley's ing for an "entrenched" Bill of Rights (that is, a Bill analysis fails to convey the way in which events of Rights that constrains subsequent legislation). built upon one another, the way that diferent in‐ The media began to focus on constitutional issues stitutions and individuals interacted. He demon‐ in the 1990s, raising public awareness and con‐ strates how public awareness of constitutional is‐ cern. The minor political parties, especially the sues grew, but he does not relate that develop‐ relatively infuential Liberal Democrats, incorpo‐ ment to specifc events and reactions. rated support for diferent constitutional reforms It is the co-incidence of abuses and com‐ into their platforms. Finally, Foley places the orga‐ plaints, of proposals for change, that has linked nization Charter 88 in a category of its own. Dedi‐ discrete calls for reform into a movement. Histo‐ cated to constitutional reform, Charter 88 worked ry, not logic, tied the reform movement together, to integrate various proposals for reform and to and that is a crucial element that Foley's political- coordinate the reform campaign. Reform propo‐ science approach fails to convey. Moreover, in nents repeatedly and consistently publicized gov‐ stressing the politics of constitutional reform, Fo‐ ernmental misconduct, abuses, and failure. They ley slights the ways in which the constitution was ofered alternatives, and ultimately proposed new changing even as the battle raged. He notes large-scale constitutional settlements, such as the judges' public calls for increased protection of civ‐ Liberal Democrats' document "We, the People...: il liberty, but he entirely ignores the increasing ac‐ Towards a Written Constitution."[10] They spon‐ tivism of the judiciary. He describes the growing sored opinion polls and publicized widely increas‐ infuence of the EU and its European Court of Jus‐ ing public support for constitutional reform. They tice on Britain, but he does not point out clearly compared British constitutional arrangements the challenge they present to the whole idea of with those of other nations. Foley pedantically parliamentary sovereignty, nor how they and the refers to each of these activities as a separate European Court of Human Rights they have creat‐ "technique of advocacy"(138). ed introduced enhanced notions of judicial re‐

5 H-Net Reviews view into the British system. He never mentions change. Changes will have unforeseen efects, ne‐ the Parliament's efort to entrench EU law in the cessitating further changes. The results may be United Kingdom, nor the courts' acquiescence. Fo‐ uncomfortable. In the end, Foley predicts that the ley does not consider the constitutional implica‐ public will tire of dealing with so fundamental an tions of the use of referenda to determine public issue. One cannot help but feel that constitutional policy, nor of the concept of the "mandate," both reform in Britain has already proceeded further of which imply popular rather than parliamen‐ than Foley expected, but there certainly is every tary sovereignty, laying the theoretical basis for reason to think he is right that it may lead in un‐ an authority that could bind Parliament. comfortable directions and that a reaction may Growing public pressure culminated in the set in. The devolution of powers to the Scottish Labour Party's decision to make constitutional re‐ Parliament is bound to raise issues of jurisdiction form a central promise of its 1997 election mani‐ between it and the Westminster Parliament that festo -- the reintroduction of "constitutional poli‐ may not be resolvable by an exercise of the lat‐ tics." Foley describes Labour's longstanding dis‐ ter's claimed sovereign authority. It has already trust of the issue and the slow process by which raised the "Midlothian Problem," which asks why moderate, "New Labour" leaders came to appreci‐ Scottish representatives can vote in Parliament on ate its political appeal. Perhaps more important, domestic matters afecting England while English constitutional reform provided a basis for elec‐ representatives can no longer vote on domestic toral cooperation with the Liberal Democrats, matters afecting . who turned their fre on the Conservatives. Foley In sum, The Politics of the British Constitu‐ provides a detailed account and analysis of tion provides an excellent summary of the politics Labour's strategy, the role of the Liberal of constitutional reform in the United Kingdom in Democrats, and the response of Prime Minister the past twenty years and an excellent introduc‐ John Major and his Conservative party. He con‐ tion to the literature. Concentrating on the politics cludes that Labour was torn between its desire to of reform, it does not ofer a complete overview of harness a clearly popular issue, and its fear that the dramatic constitutional changes taking place, the Conservatives would once again paint them as because some of those changes are occurring due reckless radicals, threatening British traditions. In to the activities of institutions that lie outside the the end, the Conservatives tried to make defense sphere of British politics. But that should not dis‐ of the constitution a Major issue, but they did so courage anyone interested in these developments too late. They could not rouse public fears on an from acquiring and reading this important book. issue that Labour had downplayed. Notes Foley's conclusion looks forward to the role [1]. House of Lords Act, 1999 chap. 34. Foley expected constitutional politics to play in a [2]. Government of Scotland Act, 1998 Chap. Labour government. The frst Queen's Speech -- 46; Government of Wales Act, 1998 Chap. 38; the equivalent of the U.S. President's annual mes‐ Act, 1998 Chap. 47. sage to Congress -- promised the wide-ranging re‐ forms noted in the introduction to this review. But [3]. A.W. Bradley and K.D. Ewing, "The United Foley reports widespread distrust of Labour's in‐ Kingdom and the European Community," in tentions among reformers and in the media; he Bradley and Ewing, Constitutional and Adminis‐ expects any government to be reluctant to limit its trative Law, 12th ed. (London and N.Y.: Longman, own power, and he predicts that Labour's victory 1997), 131-59. itself will defate public support for constitutional

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[4]. European Communities Act 1972, 1972 Chap. 68. [5]. R. v. Secretary of State for Transport, ex parte Factortame, Ltd., [1990] 2 AC 85. [6]. A.W. Bradley, "The Sovereignty of Parlia‐ ment -- Form or Substance?" in Jefrey Jowell and Dawn Oliver (eds.), The Changing Constitution, 4th ed. (Oxford: Clarendon Press, 2000), 23-57; Paul Craig, "Britain in the European Union," ibid., 61-88. [7]. Human Rights Act, 1998 Chap. 42. [8]. (London and New York: Macmillan, 1885). [9]. Recently some scholars have rediscovered the importance and implications of Dicey*s con‐ cept of the rule of law. See, for example, T. R. S. Al‐ lan, Law, Liberty, and Justice: The Legal Founda‐ tions of British Constitutionalism (Oxford: Claren‐ don Press, 1993), 2-3, 20; Janet Ajzenstat, "Recon‐ ciling Parliament and Rights: A.V. Dicey Reads the Canadian Charter of Rights and Freedoms," Cana‐ dian Journal of Political Science, 30 (December 1997): 645-62. [10]. (Hebden Bridge: Hebden Royd, 1990).

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Citation: Michael Les Benedict. Review of Foley, Michael. The Politics of the British Constitution. H-Law, H-Net Reviews. October, 2000.

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