Constitutionalism in England

8 Key excerpts on "Constitutionalism in England"

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  Beyond Magna Carta

  A Constitution for the United Kingdom

  • Andrew Blick(Author)
  • 2015(Publication Date)
  • Hart Publishing

    (Publisher)

  Two Treatises of Government in 1690. Further struggles took place between the different components of the legislature and between supporters and opponents of the very existence of monarchy. Another tension was between more arbitrary and more limited government. Criticism of the Stuarts often held that they favoured the former approach, but it was also possible to make this charge against the system that supplanted the monarchy of Charles I. Furthermore, the connection between support for religious tolerance and government by consent was complex. A monarch such as James II might take up the cause of more freedom of belief (even claiming he had introduced a new Magna Carta) but dislike relying on Parliament, while his opponents could fear in his religious programme a shift towards Catholicism, as well as disliking an assertion of the Royal Prerogative over Parliament.

  Various constitutional texts appeared in efforts to resolve these disputes in particular directions, some of which resemble, in important respects, written constitutions; others, which go further, could be said fully to merit such a description. This tendency takes us to a further area of contention of this period, and requires some terminological clarification. During the seventeenth century the use of the word ‘constitution’ to mean the system of governance began to come into use, though it did not immediately achieve the wider application it eventually attained, and did not imply a single encompassing text. The word ‘constitution’ is Latin in origin. In Roman times constitutiones was a formal description applied to the laws of the emperors (though in usage it could convey a wider concept). Subsequently the Church adopted this label to describe its internal directives. By the twelfth century, constitutiones was imported back into the secular domain, though still to describe individual measures rather than the systemic whole.10

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  The Law

  • Jeremy Waldron(Author)
  • 1990(Publication Date)
  • Routledge

    (Publisher)

  Instead of it being the rule that ‘whatever the Queen-in-Parliament enacts is law’, the rule of recognition will now be ‘whatever the Queen-in-Parliament enacts is law unless it infringes the Bill of Rights’. There will have been a quiet revolution in the basis of legal validity. We can see that as a possibility as soon as we become aware that, ultimately, legal validity is simply a matter of how citizens, officials, and agencies approach the traditional sources of law anyway. And that was the lesson we drew from the story of the Macmillan succession. 30 The constitution as a framework for politics In our discussion of structures and our discussion of constraint, the issue has been the balance of power in society. The aim of a constitution is to regulate that balance in a way that is regarded as fair and favourable to liberty, order, and responsibility as they are understood in the society. But there is also one other aspect of constitutionalism that is worthy of mention. The idea of positive law, as it has emerged in these chapters, is the idea that we can make and remake our society and our politics more or less as we please. Of course, there are limits to our success: we may try to make Britain fairer or more prosperous and fail. But in principle there is nothing in the way we organize things that we cannot change (though we may not achieve what we were trying to achieve in doing so). If there is a statute we can repeal or amend it. If there is an institution, we can restructure it. We can have two parties or several parties, proportional representation or the plurality system, quinquennial or triennial elections, nuclear weapons or conventional weapons only, a welfare state or no welfare state, a poll tax or local rates, and so on. That sense—that everything is up for grabs—can sometimes be unnerving. Partly this is the giddy sense of nausea that existentialists have pointed to: our fear of freedom

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  The Constitution of the United Kingdom

  A Contextual Analysis

  • Peter Leyland(Author)
  • 2021(Publication Date)
  • Hart Publishing

    (Publisher)

  3

  Constitutional Principles

  Parliamentary Sovereignty – Express Repeal – Implied Repeal – Enrolled Act Rule – Legislative Supremacy – Primary Legislation – Constitutional Statutes – European Convention on Human Rights – Political Sovereignty – Referendum – Rule of Law – Predominance of Law – Arbitrary Powers – Equality before the Law – Judicial Independence – Separation of Powers – Fusion of Powers

  INTRODUCTION

  A ny discussion of the British constitution depends upon a knowledge of the sources of the uncodified constitution, allied to familiarity with the main principles which underpin the current workings of the constitution. These concepts can be linked to landmarks in constitutional history mentioned earlier, but, at the same time, they are of central importance to current practice, and they are open to interpretation in different ways. For example, it was noted in the opening chapter that the Bill of Rights of 1689 makes the Crown subject to the will of Parliament and that it also recognises that Parliament (Crown, Lords, and Commons) has unlimited legislative authority. In short: ‘The principle inherent in the Bill of Rights is the supremacy of Parliament in law.’1 It will be necessary when discussing the sovereignty of Parliament to assess what this apparently absolute doctrine now means, given that the European Communities Act 1972, prior to its repeal, was interpreted as allotting special status to EU law, and the Human Rights Act 1998 (HRA 1998) requires judges to interpret statutes according to the European Convention on Human Rights (ECHR).

  Another point worth making at the outset is that these doctrines are related to each other. Laws gain their legitimacy from a democratically elected sovereign Parliament. At the same time, when implementing any such laws, there needs to be a way of protecting citizens from arbitrary treatment and this means discretionary powers given to officials and the police must have legal bounds. Dicey was at pains to stress that: ‘In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to the utmost limit.’2 The rule of law was regarded by Dicey as the idea that has the potential under the common law to qualify the supremacy of Parliament, but we will soon discover that the rule of law is difficult to define and it is not a neutral concept. Rather, it needs a strong moral dimension in order to guide all forms both of law making and law enforcement.3

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  Constitutional and Administrative Law

  Key Facts and Key Cases

  • Jamie Grace(Author)
  • 2015(Publication Date)
  • Routledge

    (Publisher)

  Part 1The development of constitutional and administrative law in the UK Passage contains an image

  1 Contemporary and foundational issues in public law

  1.1 What is a constitution?

  1.1.1 A basic definition of a ‘constitution’ would be a body of rules regulating the way in which an organisation or institution operates. However, when the term ‘constitution’ is used in the context of a State’s constitution the definition is a little more complex.

  The constitution of a State would be expected to:

  • • establish the organs of government . Traditionally, this would consist of a body responsible for legislative functions; a body responsible for executive functions; and a body responsible for judicial functions;
  • • allocate power between those institutions;
  • • provide for the resolution of disputes on the interpretation of the constitution; and
  • • establish procedures etc. for the amendment of the constitution .

  1.1.2 The constitution therefore defines the relationship between the various institutions of the State (horizontal relationship ) and that between the State and the individual (vertical relationship ).

  1.1.3 In a narrow sense, a constitution could be defined as a particular document (or series of documents) setting out the framework and principal functions of the organs of government in a particular State. Such a constitution will have, as Wade describes, ‘special legal sanctity’, meaning that it is the highest form of law in the State.

  1.1.4

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  Truth and Tragedy

  Tribute to Hans J. Morgenthau

  • Kenneth Thompson(Author)
  • 2020(Publication Date)
  • Routledge

    (Publisher)

  12

  THE CONSTITUTION AS PARAMOUNT LAW AND THE CONSTITUTIONALIZATION OF INDIVIDUAL RIGHTS

  Early modern political theory, from Bodin to Hobbes to Rousseau, identified the exercise of legislative power with that of sovereign power. For early modern absolutism, the potestas legislatoria was the very hallmark of sovereignty.13 In England, too, the legislative power of the king-in-parliament was at the core of the assertion of the sovereignty of Parliament. In America, on the other hand, legislative power had become dissociated from sovereign power and was allocated a more limited, more modest place. Sovereignty became associated with making, or changing, the constitution. Above legislature-made law, the constitution assumed the rank of paramount law.

  In colonial times Americans were accustomed to being governed by a hierarchy of legal norms, in which the laws passed by colonial assemblies held by no means the highest rank. Legislative activity was limited by colonial charters and colonial frames of government quite apart from the superior legislative authority of the British Parliament and of the disallowance powers of the Privy Council in London. Laws of colonial assemblies were acts done under superior authority, as laws of the British Parliament definitely were not; and acts of the state legislatures were acts done under the superior authority of the state constitutions as, finally, acts of Congress were to be acts done under the authority of the Federal Constitution. The Founding Fathers were acutely aware of this profound difference between British and American constitutionalism. There exists one piece of British legislation that for them, as well as for later generations, symbolically represented the identity of legislative and sovereign power in Britain: the Septennial Act of 1716, by virtue of which a Parliament elected for three years prolonged its own duration for another four years without any mandate from the electorate. As late as 1885 Albert V. Dicey said that “there is no single statute which is more significant either as to the theory or as to the practical working of the constitution than the Septennial Act.”14 It was so important because it demonstrated more tellingly than other laws the sovereignty of the British Parliament. For Thomas Paine, the Septennial Act was proof that “there is no constitution in England.”15 In 1786 James Iredell of North Carolina denounced the “principle of unbounded legislative power” that “our constitution reprobates;” for its existence in England Iredell referred to the Septennial Act and concluded that “in England, therefore, they are less free than we are.”16 James Madison, in No. 53 of The Federalist, also invoked the Septennial Act to contrast legislative supremacy in Britain with the subordination, in America, of legislative power to “the authority of a paramount Constitution.”17

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  Benjamin Constant's Philosophy of Liberalism

  A Study in Politics and Religion

  • Guy H. Dodge(Author)
  • 2012(Publication Date)
  • The University of North Carolina Press

    (Publisher)

  England is [was] at bottom a vast, opulent, and vigorous aristocracy; of large properties united in the same hands, colossal riches accumulated in the same hands, a numerous and faithful clientele grouped around each proprietor—lastly, as a result of this combination, a national representation composed in part of those salaried by the government and in part by those chosen by the aristocracy [pocket boroughs]; such has been the organization of England to this day. This organization, which appears to be imperfect and oppressive in theory, was mitigated in practice as much by the good effects of liberty acquired in 1688 as by several circumstances in England, which have not been sufficiently noticed when one wishes to transport elsewhere certain institutions with respect to privileges borrowed from the British constitution.

  Constant then admitted that he himself had not been preserved from this error when he discussed the peerage in his Réflexions sur les constitutions .

  In this treatise Constant faced a very important question in matters of limited government, namely, what is or is not constitutional. “Everything which does not touch the limits and the respective prerogatives of the powers, political rights, and individual rights, is not part of the constitution but can be modified with the consent of the king and the two houses.”43 Much earlier—in 1797—Constant had outlined his idea of the essence of constitutionalism when he wrote: “A constitution is the guarantee of a people’s liberty; consequently, everything which has to do with liberty is constitutional and consequently also nothing is constitutional, which is not related to liberty.”44

  Constant observes that this problem of a constitution reminds him of the comparison he is continually making between French history of the past twenty-five years and the constitutional history of England. The English constitution has lasted for a century and a half; none of the French have survived more than three years. He states that he wants to answer those who claim that England is fortunate not to have a constitution because it is not written. Constant replies that England does have a constitution because it has habeas corpus, the Bill of Rights, Magna Carta, national representation, and trial by jury. It does not matter that these things are not written down in a document because they are fundamental laws that cannot be violated. Furthermore, England has what are called precedents but France does not because the Revolution destroyed what existed and nothing can take its place. In fact, France has had a complete housecleaning every fifty years.

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  Scottish Nationalism

  History, Ideology and the Question of Independence

  • Richard Finlay(Author)
  • 2022(Publication Date)
  • Bloomsbury Academic

    (Publisher)

  Given the disparity of wealth and strength of the two nations, the Scots had to rely on volunteers and developed the system of Wapenshaw, which was the mobilization of local communities for self-defence. This meant that Scots from all classes were involved with the defence of the realm and ideas of constitutionalism reflected this all-embracing composition of the nation: ‘Every Scot had, so to speak, a spade in one hand and a sword in the other, and an invader was not faced with a section of the people but the whole nation in arms.’ 130 It also was posited as the beginning of the Scottish tradition of individualism which was strongly associated with freedom and individual liberty. This individualism, it was argued, was reflected in the Roman legal system. Interestingly, although English historians and philosophers have attached a premium to the influence of individualism and personal liberty in accounting for the development of English ideas of constitutionalism, Scots critics believed just the opposite. 131 The powerful English monarchy was able to use mercenaries and the lack of personal investment in maintaining liberty meant that, according to one Scottish legal thinker, there was a slavish devotion to authority and this was reflected in the complexity of their legal system. The English natural deference to authority was put down to being a conquered people. 132 For many, the constitutional incoherence of the Union and the fact that it had, in the eyes of many, been subject to repeated violation meant that a shadow of ambivalence was cast over the legality of the British state and whether there should be a strict observance of all aspect of the law. The appeal to some sort of higher Scottish constitutional principle, even though it has always been vaguely defined, has meant that for some nationalists there has been the legitimacy required to break the law

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  Text, Cases and Materials on Public Law and Human Rights

  • Helen Fenwick, Gavin Phillipson, Alexander Williams(Authors)
  • 2020(Publication Date)
  • Routledge

    (Publisher)

  To put the same point another way, it is striking that in countries with capital-C Constitutions those Constitutions usually act as normative and legal standards. They constitute benchmarks against which the actions of governments and individuals can be tested. The Constitution in such countries can be ‘violated’ just as the ordinary law can be ‘broken’. Constitutional courts usually exist in such countries precisely in order to determine whether in specific instances the country’s Constitution has been violated. In the United States, the federal Supreme Court—in effect, America’s constitutional court—is one of that country’s pivotal political institutions. In the UK, by contrast, the constitution, not being a Constitution, is seldom understood as constituting any kind of normative or legal standard. The constitution in the UK is not in any sense a benchmark. It is simply, for better or worse, a state of affairs—‘what happens’. Those who protest—as people occasionally do—that the British constitution has been violated are not saying anything precise. They are merely expressing disgruntlement with some new state of affairs.

  Notes

  1.  McAuslan and McEldowney made a similar point back in 1985, asking:50

  what is the value or use of a constitution based on and designed to ensure the maintenance of a system of limited government if it can, quite lawfully and even constitutionally, be set on one side?

  2.  The (to many) unsatisfactory level of uncertainty generated by the UK’s ‘unwritten’ constitution has led to many proposals to codify it.51 There was a brief flurry of interest in this idea generated by the Brown Government’s initial paper on constitutional reform,52 while the House of Commons Political and Constitutional Reform Committee (since disbanded) conducted a major inquiry on codifying the UK constitution53 during the last Parliament, including two reports setting out various options in this regard, and draft constitutions.54 For a sceptical view on codification, see N Barber, ‘Against a Written Constitution’ (2008) PL 11.

  The Political Constitutionalist Perspective

  What all these changes indicate is that, in the UK, the constitution, which in many other countries is policed by a constitutional court, or some other body independent of government, is in the UK an overtly political animal, as apt to be reformed to the convenience of government as social or economic policy. David Marquand has indeed argued that governments of both Left and Right, even where they have tinkered with or substantially changed the uncodified constitution, have wanted to leave its essentials unchanged, because the combination of huge executive power (via control of a usually complaisant or weak Parliament) and parliamentary sovereignty—meaning an absence of legal controls on what Parliament may do through legislation—has suited them: they are able to use Parliament to bring about whatever changes they want. Thus Labour Governments after WWII moved the country in a socialist direction by establishing the NHS, the welfare state and universal compulsory schooling, nationalising key industries and redistributing wealth, all without having to worry about whether such reforms were ‘unconstitutional’ or not. Conversely the Thatcher Governments used the same power of government to pursue a rightwing agenda, in which they ‘marginalised the trade unions, curbed the local authorities, privatised most of the nationalised industries and imposed market norms on the remaining public sector.’55

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