Review: Is There a United Kingdom Constitution?

Reviewed Work(s): Politics and the Constitution by Vernon Bodganor

Review by: Eric Barendt
Source: Oxford Journal of Legal Studies , Spring, 1997, Vol. 17, No. 1 (Spring, 1997), pp.
137-146
Published by: Oxford University Press

Stable URL: https://www.jstor.org/stable/764688

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 Is there a United Kingdom
Constitution?

ERIC BARENDT*

'... Anything is constitutional, or anything is unconstitutional, j

look at it.' It was clear that the Duchess had really studied the
(Anthony Trollope, The P1ime Minister).'

1.

The Duchess of Omnium was neither a constitutional lawyer nor a political

scientist. But there is just a little sense in her robust no-nonsense approach to
the resolution of constitutional questions. For the United Kingdom has no
codified constitution, neither is there a court or tribunal with explicit authority
to resolve constitutional disputes. As a result one can side with the Duchess:
constitutional questions in this country are often largely matters of political
argument. Or possibly one could go further and agree with Tocqueville that the
Constitution in England (or properly, the United Kingdom) does not exist, since
Parliament can always amend whatever arrangements are in place.
This is not quite Vernon Bodganor's perspective, at least as it emerges from
the essays now collected in Politics and the Constitution.2 But he is very gloomy
about the present constitutional arrangements for failing to impose effective
restraints on the power of government through Parliament to assert its will. For
him, as for Dicey, the Constitution is a resumrn of historical experience, rather
than a set of normative principles. Thomas Paine argued that a constitution
should logically and historically be anterior to government, but in this country
it has simply resulted from the struggles of history between King and Parliament
and more recently between political classes and parties. Moreover, what has
resulted is the dominance of the majority political party. The Constitution is
also intensely political in that its interpretation and development depends in
many contexts as much on the manipulation and manoeuvres of political parties
and their leaders as on the wisdom of judges. This is particularly true with regard
to the treatment of constitutional conventions (discussed later in this review

* Goodman Professor of Media Law, Faculty of Laws, University College, London

SWorld Classics (OUP 1983) 260.

2 Sub-tited, Essays on British Government, Dartmouth, 1996: xxi + 276 pp.
? Oxford University Press 1997 Oxford Journal of Legal Studies Vol 17, No 1

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 138 Oxford Journal of Legal Studies VOL 17
article) which possess only such significance as politicians a
them. As a result they no longer provide an effective restra
of government. Bogdanor is equivocal about referendums,
declining years had favoured as a restraint on the suprema
Their use is too episodic. One ground for scepticism is t
referendum has most frequently been made to resolve issu
governing political party is irretrievably split-most obvious
the European Community, but also to some extent in t
acceptability of devolution in Scotland and Wales.
Bogdanor writes in his first essay, The Political Constitution, th
can be reduced to eight words: What the Queen in Parliame
Leaving aside the consequences of accession to the European
are no legal constraints on the legislative supremacy of Parliame
is controlled by the majority political party and every four
electorate. (But provided the consent of the House of L
governments may lawfully postpone elections.) There are i
known, no legally enforceable guarantees against tyrannical
other words we have what Lord Hailsham (when in opposit
'elective dictatorship'.
There is a widespread, though not universal, view that th
unsatisfactory. Constitutional reform is on the agenda, and s
confidently be expected if the forthcoming general election lead
of a Labour Government with a working majority (or a Labou
partnership). But it is perhaps reasonable to ask with Tocqu
Duchess) whether there is really any constitution to reform
reformers and framers should surely have some concept of w
is in essence and what it is for.

2.

The framers of the French Declaration of the Rights of Man were in no doubt
about the answers to questions of this sort. Article 16 states unequivocally: 'Any
society in which the safeguarding of rights is not assured, and the separation of
powers is not established, has no constitution'. On this view a constitution
necessarily imposes limits on government and divides powers between its branches
as a means to that end; otherwise there is no constitution in the proper sense or
understanding of that word. Moreover, a constitution must be written, a step
described by Marshall CJ as the 'greatest improvement on political institutions'.3
We would now probably understand him to mean that it must be reduced to a
single text, or at most a limited set of written texts, for otherwise the proposition
is too trite to be worthy of note. More importantly, Marbury v Madison decided
that judicial review was integral to a written constitution. What, asked Marshall

3 Marbury v Madison 1 Cranch 137 (1803).

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SPRING 1997 Is there a United Kingdom Constitution? 139
CJ, would be its point if Congress (or the executive) could freely ignore the
constraints set out in the text? In effect, he suggested that limits on the exercise
of legislative (and other) power and judicial review are both practically inevitable
consequences of the decision to incorporate the fundamental rules of a community
in a written or codified constitution.
The demand at the end of the eighteenth and during the nineteenth centuries
for a constitution was also a call (at least on the continent of Europe) to limit
the powers of authoritarian government. Constitutions were promulgated after
revolution (as in France in 1789 and 1830) or conceded by a hitherto absolute
monarch as with the Spanish Constitution of 1812 or the Fundamental Law of
the Kingdom of Sardinia (Statuto albertino) of 1848 which became the Con-
stitution of the Kingdom of Italy and indeed survived until the institution of the
post-war Republic. But as McIlwain, Sartori and other writers have argued,
constitutionalism as the theory of limited government has a much older history.
It certainly antedates the drafting of the written American Constitutions (state
and federal) celebrated in Marbury v Madison. In both the ancient and medieval
world it is easy to detect from time to time the germination of the ideas of
limited, as opposed to absolute monarchy or government and even of the
conclusion that laws which infringed fundamental moral principles should not
be given full recognition. Bracton for instance was of the view that the King's
authority was limited by law, at least so far as the administration of justice
(jurisdictio) was concerned, and it is possible to see the same principle in Magna
Carta.' Moreover, it is surely too narrow a perspective to require a codified
text, imposing limits on the powers of government, for the term constitution to
be appropriately applied to a set of fundamental laws. For the word or concept
has a bewildering variety of meanings. We can talk about the constitution of a
physical body in terms of its health and strength. The word, at least in its verbal
forms ('constitute', 'constituting') may be used to refer to the act of establishing
an institution or society, or, in a substantive form, to the effect of that act. It
may be used prescriptively, or purely descriptively as it is in the proposition, 'the
English eighteenth century constitution nicely balanced the powers of King,
Lords and Commons'. Further, Americans revere their Constitution as the
foundation of their society; that reverence does not only cover the text of 1787
(as amended) but extends to the evolving constitution as interpreted by the
Courts and applied by the other branches of government. In continental European
jurisprudence there is a familiar distinction between the constitution in the
Kelsenian formal juridical sense, the foundation of each discrete legal system,
and the material constitution which denotes the fundamental political values or
commitments of the State reflected in its official practice. The material Con-
stitution determines the interpretation of the rules set out in the formal con-
stitutional text. This approach, particularly associated in German constitutional
thought with Carl Schmitt, has sometimes appeared in its emphasis on political

* See C. H. McIlwain, Consditutionalism: Ancient and Modern (Cornell, NY, 1947) 69-72, 86.

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 140 Oxford fournal of Legal Studies VOL. 17
commitment and practice to conflate might and right; naturally it be
discredited after its use to explain (and sometimes justify) the legal order of
Third Reich.
Obviously there is a United Kingdom Constitution in some, if not all, of these
senses. As Bodganor, a political scientist, implies in his Introduction, there is
clearly a constitution in the sense of a 'power map', outlining where power lies,
explaining how it is exercised and so on. This is the constitution in the descriptive
sense. There are also laws and decisions of a constitutional character, that is,
rules which would form part of a codified constitution for the United Kingdom
if it had one. To give just two straightforward examples, the Common Law
concerning the existence and control of the Crown's prerogative powers, and
the provisions in the Bill of Rights 1689 vindicating the (legislative) powers of
Parliament, are clearly constitutional in substance. Moreover, these principles
are normative. They limit the scope of the executive's power to legislate, as the
House of Lords held recently in the Fire Brigades Union case,5 and have required
the courts to determine what counts as an Act of Parliament. So it will not do
to say that the terms constitution and constitutional are only properly used in the
United Kingdom in a descriptive sense. If the Duchess meant that, she had not
thought about the matter carefully enough.
The complaint that there is no Constitution in the United Kingdom either
means that only codified constitutions merit this description, or, more seriously,
that in the absence of legally enforceable guarantees protecting the freedom of
the citizen (and perhaps an effective separation of powers) it is improper to
apply the term to our arrangements. The first charge can be dismissed relatively
easily. There seems no good reason to dismiss uncodified or customary con-
stitutions altogether from the category of constitutions. Not only would this
exclude the United Kingdom (or English) Constitution, but would make nonsense
of any reference to the customary Constitutions of Ancient Greece and Rome.
Nor would it have been possible until recently to speak of the New Zealand
Constitution, only consolidated in 1986. The Israeli Constitution is still only
partly codified. More fundamentally, we would lose the significance of the classic
distinction between flexible and rigid constitutions drawn by James Bryce,
the former classification probably applying only to uncodified constitutions
amendable by ordinary legislative procedure. We would be left with the (ad-
mittedly enormous) class of rigid codified constitutions. As Thomas Grey has
pointed out there is nothing to be gained and everything to be lost by restrictive
definitions of legal terms such as constitution: '[a] debate about whether the
British Constitution is really a constitution insofar as it is not legally binding
would involve effort misdirected from the more fruitful endeavour of analysing

s R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513, on which see
Barendt [1995] Public Law 357.

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 SPRING 1997 Is there a United Kingdom Constitution? 141
and evaluating the actual differences between the British and American (or
French) styles of constitutionalism'.6
Much more serious is the point that a constitutional text without legally
enforceable guarantees of citizens' freedoms and a proper balance or separation
of powers scarcely merits the description of a constitution. In contradistinction
to the formal argument discussed in the previous paragraph, this is a point about
the necessary content of constitutions. As already mentioned, the rise of written
constitutions in the nineteenth century occurred to meet the demand for limits
on previously absolute government. The development was inspired by the
principle of constitutionalism, a principle linked to, but significantly different
from, those of liberalism and democracy. Liberalism has clearly been concerned
among other things with the province of law, but has little to say about the
structure of government and the balance of powers. Democracy with its emphasis
on majority rule is on one view fundamentally antithetical to the principal
demand of constitutionalism, that the concentration of power in the hands of
any institution of government is dangerous and that it should so far as practicable
be dispersed. Indeed, the separation of powers in some form is arguably the
essence of constitutionalism.' However, there are plenty of countries which
have constitutions but which do not observe the principles of constitutionalism.
One-party States where opposition and the press are systematically repressed
may still have a text described as 'the constitution'. Such States have what
Giovanni Sartori has termed 'nominal' or 'facade' constitutions;8 the former are
perhaps equivalent to Bogdanor's 'power maps', while the latter pretend to
guarantee fundamental freedoms, but behind the facade it is a different story,
as it was under the constitutions of the Soviet Union. Sartori argues persuasively
that the terms 'constitution' and 'constitutional' should be limited to those
arrangements which do observe the principles of constitutionalism: 'real' or
garantiste constitutions. Otherwise we must conclude that a tyrannical government
behaves constitutionally when it imprisons (or executes) the opposition, provided
only it observes the legal forms.
Bogdanor's essays examine the UK Constitution in the light of the principles
of constitutionalism, and, as we will see, find it seriously defective. He would
therefore appear to share Sartori's view that a constitution means more than a
simple description of a state order or its arrangements for the exercise of power,
and that 'constitutions' which do not go beyond this are mere shams. It is odd
that this conclusion would not be universally shared. We would have no difficulty
in deciding, say, that Iraq or China are not proper democracies, but we are more
reluctant to conclude that they lack a real constitution. The explanation is almost
certainly that our (maybe unconscious) commitment to the positivist tradition
of jurisprudence compels us to recognize as a constitution a document which is
6 'Conscitutionalism: An Analytic Framework' in J.R. Pennock & J.W. Chapman (eds) Constirutionalism. (Nomos
XX, 1979, New York) 189, 191 (the emphasis is in the original).
7 Hence the theme and title of MI.J.C. Vile's classic book, Constitutionalism and the Separation of Powers (Oxford,
1967).
8 'Constitutionalism: A Preliminary Discussion' (1962) 56 Am Pol Sc Rev 853, 860.

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 142 Oxford Journal of Legal Studies VOL 17
issued in some apparently proper way and which operates as
effective legal system, quite irrespective of its moral and pol
are not so restricted in our understanding of democracy, a c
much political, but relatively little legal significance. But we
that there are constitutions which pay no respect to the pr
stitutionalism, and which are in Sartori's words 'nominal' or

3.

How should we characterize the UK Constitution? Is it to be viewed now as a

'facade', a curtain behind which some monstrous political melodrama is enacted
Vernon Bogdanor's essays fully chronicle the respects in which our arrangements
fail to satisfy the principles of constitutionalism. Power is concentrated in th
hands of the Prime Minister and Cabinet, almost always able through party
discipline to secure the passage of its legislative programme. The present Gov
ernment has removed competing centres of power by abolishing the GLC and
the metropolitan borough councils, and elsewhere has significantly cramped th
freedom of local authorities. The financing and organization of the political
parties, which in government exercise enormous power and influence, is almos
entirely unregulated by law. In the final analysis the courts cannot protect
fundamental rights when it is the clear intention of Parliament to remove them
or to empower ministers to stop their exercise, as shown in the broadcasting
ban case.' This looks like a 'facade' constitution. Moreover, its contours are
uncertain, as is inevitable with uncodified and to some extent even unwritten
arrangements. (Some (alleged) constitutional conventions are reduced to writin
only in the texts of constitutional law books.) Dicey would have disagree
with this assessment. Parliamentary supremacy would not in his view lead t
authoritarian government because of the internal and external limits on its
exercise, the existence of constitutional conventions, and the rule of law doctrine.
Conventions ensure the responsibility of Ministers to Parliament, and through
the House of Commons to the electorate, a role also discharged by the interna
limit that legislation be politically acceptable (or at least not repugnant) to th
majority of the public. The rule of law distinguishes proper legislation, Acts o
Parliament, from executive decrees and from resolutions of one House.
While the rule of law for what it is worth is guaranteed by the courts, Bogdanor
is correct to point out that otherwise the values of constitutionalism are protected
politically. The existence, scope, and application of conventions are determine
by those bound by them, the politicians themselves. As Bogdanor puts it (at 26
'... the peculiarity of the British constitution is that it lacks an umpire. It is the
players themselves, the government of the day, who interpret the way in which
the rules are to be applied'. Indeed, the rules are made up as the game is played
Hence, Prime Ministers are free to determine when the principles of Cabinet

9 R v Secretary of Statefor Home Department, ex parte Brind [1991] 1 AC 696.

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SPRING 1997 Is there a United Kingdom Constitution? 143
collective responsibility apply, a freedom exploited by both Wilson and Callag
to allow for dissent among members of their Governments over membershi
the European Community. We can be quite sure that if a General Election
produces a hung Parliament, politicians will debate in party political terms
appropriate conventions which 'regulate' the discretion of the Queen to cho
her Prime Minister.
It would be unjust to Dicey, however, to suggest that he advocated a constitution
which violated the very principles of constitutionalism. When he wrote the
Introduction to the Study of the Law of Constitution in 1885, the principles of
balance between, and dispersal of, powers were much better respected than they
are a century later. The Monarch enjoyed considerable political discretion,
in particular in her choice of Prime Minister, though this was increasingly
circumscribed towards the end of the century by party opinion. The House of
Lords had the same right to participate in legislation as the Commons, and
during the Ulster crisis of 1913-14 George V even contemplated refusing the
Royal Assent. The House of Commons quite frequently denied the Government
the passage of legislation, and the doctrine of ministerial responsibility ensured
the accountability of the executive to an often critical legislature.
There was therefore a balance of powers, albeit only a shadow of that which
had characterized, say, the seventeenth and eighteenth century constitutions,
and of course it could not be enforced by a constitutional court similar to the
Supreme Court of the United States. But it would be wrong to underestimate
the significance which many still attached to this balance, not only at the end
of the nineteenth century, but in the first decade or so of this. The Preamble to
the Parliament Act 1911 refers to the eventual replacement of the House of Lords
with a popularly elected Second Chamber, hinting at the possible restoration of
the power to veto legislation which the House had lost by that measure. Balfour,
then Leader of the Conservative Party, George V, and Sir William Anson, all
considered the constitution in abeyance until the full check had been restored;
further, they considered that as a consequence in the interim the King might be
acting constitutionally if he withheld assent to the Ulster Bill.'o Since the
removal of the House of Lords' veto there has been no constitutional check on
the supremacy of the House of Commons, in practice the governing political
party and its leaders. Only lip-service is paid to the convention of ministerial
responsibility, correctly understood by Bogdanor to mean that Ministers should
accept responsibility for departmental mistakes (at 30). Other conventions which
might have limited the power of central Government and its Ministers have
never been fully established. For example, Bogdanor makes a powerful argument
(in ch 9) that the position of local authorities should be protected by constitutional
principles or conventions. He also argues (at 36-53) that the conventions
concerning the relationship of civil servants and ministers should be clarified

'o See Vernon Bogdanor, The Monarchy and the Constimuion (Oxford, 1995)122-35.

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 144 Oxford Journal of Legal Studies VOL. 17

and more rigorously enforced. The difficulty, however, is tha

whether there have really been any conventions at all in th
Surely, then, it is clear by now that constitutional conv
worthless as a check on the power of central Government. It i
surprising to find that Bogdanor speculates in his Introduction
they could be resuscitated. We need to reflect more on th
conventions have become securely established and others
or indeed never took root. The conventions limiting the pe
Monarch are firm since they reflect the modem evolution of
monarchy. After the reign of George V, if not earlier, it b
for the Royal Assent to be refused, just as now it is unim
political circumstances that a person other than the leade
party would be chosen as Prime Minister. But the convent
relationship of the political executive to Parliament and th
responsibility and collective Cabinet responsibility) are at
changing attitudes of politicians; it is hard to imagine th
restoration of Victorian constitutional values. Moreover, ev
say, of ministerial responsibility were revived during the perio
there can be no guarantee it would be observed by subsequ
Bogdanor is unsure (at 223-4) whether there is now a co
unconstitutional for Parliament to transfer its powers (either
Community/Union or down to Scotland/Wales/the regions
first being put to referendum. Elsewhere (at 16) he hints th
provide a check on Parliament. This is a little baffling. For a s
over continued membership of the EC and over Scottish an
were only held because the governing Labour party was de
issues: they provide no precedent for a convention that a
and majority party should put to the people every questi
transfer of legislative power. Moreover, there is something pa
the referendum in this context as a check on Parliament.
referendum is eventually held after a government and parliam
enter European Monetary Union. On one perspective, a NO
check the surrender of parliamentary authority, but on another
the monopoly of Westminster authority which Parliamen
transfer to or share with Brussels (or in other circumstances d
Assembly).
If the holding of referendums from time to time were considered desirable,
detailed provision should be made for them in a constitutional text. Such
provision might conceivably allow for them to be held in some circumstances
on popular initiative. Crucially, it should require a (constitutional) court to stop
their abuse by the Government or by the political parties. For they can be used
to distort the constitutional balance of powers, as happened in France in 1962
when de Gaulle secured the amendment of the Fifth Republic Constitution by
referendum to introduce direct election of the President. Interestingly, the

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SPRING 1997 Is there a United Kingdom Constitution? 145
German Basic Law authorizes referendums only on the minor issue of re-
organization of the Lander; although state authority emanates from the people,
it is to be exercised through elections and by the three branches of government
(Basic Law, art 20 (2)). For the truth is that the referendum is fundamentally a
populist device, hardly appropriate to a constitution which observes the balance
of powers and respects basic rights. This has been evidenced recently in Italy.
At the end of 1994 the Constitutional Court ruled that Berlusconi's control of
three national television networks infringed the constitutional requirement of
pluralism of information implicit in the protection of freedom of expression. Six
months later a legislative measure to reduce his media empire was vetoed by
referendum. To adapt Alcuin's dictum, Vox populi, vox dei makes deplorable
constitutional law.

4.

From a formal perspective UK constitutional law is a hotchpotch of statutes,

case law, and miscellaneous rules (such as the privileges of the Houses of
Parliament) which are, it is said, made intelligible by reference to a number of
conventions of uncertain scope and inconsistent application. With regard to its
substance, the Constitution fails to guarantee fundamental rights such as freedom
of speech and the right to a fair trial, and, as Bagehot observed, it is characterized
by the fusion, rather than the separation, of powers. Without doubt it fails the
test of the French Declaration of the Rights of Man. Yet it seems unhelpful to
withdraw from it the title 'Constitution'.
It is doubtful whether the present arrangements can be usefully improved
without reflection on the values of constitutionalism, on which there has been
relatively little serious thought in this country for the last century. As Bogdanor
rightly remarks, modern political parties and their theoreticians have ignored the
question for a long time, in the facile belief that the only important issues are
economic and social. But he adds that there has been something of a revival in
thinking about the constitution in the last ten years or so. Sadly this has not
spread to all political parties and certainly not to all sections of the community.
Much attention has been paid by the opposition parties and their think-tanks
to the reform of particular institutions, notably the House of Lords, to Scottish
and Welsh devolution, and to a much lesser extent the procedures for enacting
the reforms. In contrast, the balance of executive and legislative power has been
ignored, while difficult questions about the constitutional role, organization
and financing of political parties have successfully been downplayed by the
Conservative party. Even with regard to some of the former issues there is a
poverty of genuine constitutional thinking. Take, for example, reform of the
House of Lords. There is understandably much discussion about its composition,
but relatively little about its powers, and whether it should in certain contexts
(for example, the passage of legislation affecting fundamental rights) enjoy a
veto power. In short, there is more concern about its democratic basis than its

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 146 Oxford foumal of Legal Studies VOL 17
role as a constitutional check. The Labour party is committed to the tr
considerable powers to Scottish (and to a lesser extent Welsh) Assemb
it is most improbable that the same devolution will occur within Engl
gives rise to the unanswerable 'Lothian Question': how can one ju
authority of Scottish Westminster MPs to vote on issues which, so far as
is concerned, have been devolved to the Assembly in Edinburgh? The
would not arise within a UK federal constitution. We are then told that there is
no demand for a federal constitution. That is true. But it is doubtful whether
constitution-making should primarily be determined on the basis of what the
public wants, when an important purpose of a garantiste constitution is to limit
the things democratic majorities can do. This leads me to a pessimistic conclusion:
it may (perhaps paradoxically) be much harder to achieve significant reform in
the context of an effective party-dominated democracy than it is to extract a
constitution from an autocratic regime.

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