Durham E-Theses The Political Constitution No More? TAYLOR, ROBERT,BRETT How to cite: TAYLOR, ROBERT,BRETT (2013) The Political Constitution No More?, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/10677/ Use policy The full-text may be used and/or reproduced, and given to third parties in any format or medium, without prior permission or charge, for personal research or study, educational, or not-for-prot purposes provided that: • a full bibliographic reference is made to the original source • a link is made to the metadata record in Durham E-Theses • the full-text is not changed in any way The full-text must not be sold in any format or medium without the formal permission of the copyright holders. Please consult the full Durham E-Theses policy for further details. Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk The Political Constitution No More? Robert Brett Taylor Abstract The British constitution has recently undergone some dramatic changes which, according to leading constitutional scholar Vernon Bogdanor, signals the demise of the 'old' political constitution and its replacement with a 'new' more legal constitution. The aim of thesis is to challenge the assertion that the British constitution is undergoing a fundamental transformation from a political to a legal constitution by conducting a thorough analysis of the extent to which the contemporary British constitution can still be said to resemble a political constitution. This will be achieved through an exhaustive examination of three key areas of the constitution: the Royal Prerogative; Constitutional Conventions; and the Human Rights Act 1998. In so doing, however, it is not the aim of this thesis to produce a simple either/or account of the British constitution, but instead to advance and provide evidence of a middle-ground between the two opposing schools of constitutionalism: complementary constitutionalism. It will be argued that both the legal and the political constitutions share many common characteristics and disagree with one another primarily, although not exclusively, on emphasis. No real world constitution, therefore, was or ever will be solely legal or solely political in character. A real world constitution is instead a complementary mixture of elements from both the legal and political schools which can be either primarily legal or primarily political in character. As a result, it will be shown that the British constitution, although undisputedly more legal, nevertheless remains primarily political. 1 The Political Constitution No More? Robert Brett Taylor Ph.D. Durham Law School Durham University 2013 2 Table of Contents Chapter One: Introduction 9 1. Where is the British Constitution Heading? 9 2. The Traditional British Constitution 10 3. The Constitutional Challenge 12 4. The Political Defence 14 5. The Political Constitution No More? 15 6. Aims and Objectives 20 7. Areas of Assessment 21 I. The Royal Prerogative 22 II. Constitutional Conventions 22 III. The Human Rights Act 1998 23 8. Membership of the European Union 24 9. A Primarily Political Constitution 28 Chapter Two: Complementary Constitutionalism 29 1. The Dichotomy of Law and Politics 29 2. The Legal Constitution 31 2.1 Higher Law, Human Rights, and Constitutional Review 31 2.2 Common Law Constitutionalism 34 3. The Political Constitution 36 3.1 J.A.G. Griffith 36 3.2 Civic Republicanism and Freedom as Non-domination 38 3 3.3 Adam Tomkins 39 3.4 Richard Bellamy 42 3.5 Disagreement, Participation, and Accountability 45 4. Complementary Constitutionalism 46 4.1 The Mixed Constitution 46 4.2 Democratic Participation and Political Accountability under the Legal Constitution 55 4.3 Legal Accountability under the Political Constitution 56 4.4 Constitutional Democracy 59 5. Conclusion 69 Chapter Three: The Royal Prerogative 70 1. Constitutionalism and the Crown 70 2. Failure to Control the Prerogative 72 2.1 The Glorious Revolution 1688: Parliament's Victory over the Crown 72 2.2 No Parliamentary Approval 75 2.3 No Positive Authority 76 2.4 Immunity from Judicial Review 79 3. Bringing the Prerogative under Control 80 3.1 Plugging the Gap in Accountability 80 3.2 Placing the Prerogative, or Controls on it, on a Statutory Footing 80 3.3 Extending Judicial Review 98 4. Conclusion 115 4 Chapter Four: Constitutional Conventions 117 1. The British Constitutional Dependency on Conventions 117 2. The Law-Convention Distinction 120 2.1 The Regulatory Purpose of Conventions 120 2.2 Flexibility and the Creation of Conventions 123 2.3 Recognition versus Enforcement 127 3. The Constitutional Significance of British Dependency 131 3.1 Regulatory and Foundational Conventions 131 3.2 Why Do Conventions Bind? 133 4. Strengthening Conventions 140 4.1 Codification and Justiciability 140 4.2 Clarity, Legitimacy, and Accountability 142 4.3 The Wright Committee Reforms 145 5. Conclusion 149 Chapter Five: The Human Rights Act 1998 150 1. A British Bill of Rights? 150 1.1 Law and Politics: Protecting Rights on Two Fronts 150 1.2 Weak-form Judicial Review 153 1.3 A Complementary Balance? 158 2. Legislative Rights Review 159 2.1 Fostering a Culture of Rights 159 2.2 Section 19 and the Joint Committee on Human Rights 161 2.3 Striking a Balance between Compliance and Contestability 164 5 2.4 Legislative Rights Review in Practice 169 3. Judicial Rights Review 178 3.1 Sections 2 and 6 of the Human Rights Act 1998 178 3.2 Section 3 of the Human Rights Act 1998 180 3.3 Section 4 of the Human Rights Act 1998 196 4. Conclusion 206 Chapter Six: Conclusion 208 1. The Political Constitution No More? 208 2. Strengthening Political Controls 209 3. A Complementary Constitution 211 4. A Primarily Political Constitution 213 Bibliography 215 6 Statement of Copyright The copyright of this thesis rests with the author. No quotation from it should be published without the author’s prior written consent and information derived from it should be acknowledged. 7 Acknowledgments I would like to acknowledge the help and support of my supervisors Professor Roger Masterman and Professor Gavin Phillipson. 8 Chapter One INTRODUCTION 1. Where is the British Constitution Heading? In the absence of a codified constitution, constitutional lawyers have long been interested, not only with unearthing the British constitution, but in charting its future course. Contemporary public law discourse, however, has become dominated by an ongoing debate between two broad and seemingly opposed schools of constitutionalism – the legal and the political – both of which purport to provide the best framework from which compliance with constitutionalism can be achieved. Broadly speaking, the legal school makes the case for greater judicial oversight of constitutional issues, advocating constitutional review of primary legislation and powers of judicial strike down, whilst the political school reinterprets the traditional tenets of the British constitution in light of civil republicanism to make the case for greater reliance upon political forms of accountability. Determining the future course of the British constitution, therefore, has become increasingly polarised, with constitutional scholars seemingly fighting an ongoing battle for the very heart and soul of the British constitution. The British constitution has over the last half a century undergone some dramatic changes which, because they have ushered in greater reliance upon judicial forms of accountability, appears to signal the demise of the 'old' political constitution and its imminent replacement with a 'new' more legal constitution. The aim of thesis is to challenge the assertion that the British constitution is undergoing a fundamental transformation from a political to a legal constitution. In so doing, however, this thesis will not produce a simple either/or account of the British constitution, but instead make the case for a middle-ground between the two opposing schools of constitutionalism: complementary constitutionalism. Before discussing these aims in detail, along with the approach the thesis will take in order to achieve them, this chapter will first chart the various interpretations of and challenges to the British constitution since the late nineteenth century. 9 2. The Traditional British Constitution As Vernon Bogdanor and Stefan Vogenauer argue, ‘[c]onstitutions are generally enacted when a constitutional moment arrives, following war, revolution, or colonial independence.’1 By contrast, it has often been said that evolution and not revolution, is the hallmark of the British constitution.2 As Sir Ivor Jennings explains: The building has been constantly added to, patched, and partially re-constructed, so that it has been renewed from century to century; but it has never been razed to the ground and rebuilt on new foundations. If a constitution consists of institutions and not of paper that describes them, the British Constitution has not been made but has grown – and there is no paper.3 This is not to say, however, that the long road taken to reach the contemporary British constitution was an easy one. As this quote by Leslie Wolf-Phillips illustrates, the British constitution could be seen as the end result of many constitutional battles: The course of British constitutional developments has seen a sequence of invasions and foreign overlords, the squabbling of petty monarchs, the struggle between the nobility and the king for supremacy, the later struggle for domination between the king and parliament, the recognition of the supremacy of parliament over the king, the decline in the influence of the monarch, the rise of the middle classes in terms of constitutional recognition, and, finally, the decline of the power of the House of Lords and the central place of a House of Commons elected on a basis of universal adult suffrage.4 From the Norman Conquest, the Wars of the Roses, and the Reformation, to the Civil War, the Restoration, and the Glorious Revolution, the British constitution is unmistakably the culmination of many wars and revolutions.