Table Of ContentReshaping the British Constitution
Also by Nevil Johnson
Parliament and Administration: the Estimates Committee 1945-65, 1966
Government in the Federal Republic of Germany: the Executive at Work, 1973
In Search of the Constitution: Reflections on State and Society in Britain, 19 77; published
as a paperback, 1979. Translated into German and published under the title Die
englische Krankheit, 19 77
Economic Policy-making by Local Authorities in Britain and Western Germany, co
authored with A. B. Cochrane, 1981
State and Government in the Federal Republic of Germany: the Executive at Work, 1983
(revised and extended edition of 1973 publication)
The Limits of Political Science, 1989. Translated into Spanish and published as Los
Limitos de Ia ciencia politica, 1991
Reshaping the British
Constitution
Essays in Political Interpretation
Nevil Johnson
pal grave
macmillan
ISBN 978-0-333-94620-6 ISBN 978-0-230-50336-6 (eBook)
DOl 10.1057/9780230503366
* © Nevil Johnson 2004
Softcover reprint of the hardcover 1st edition 2004 978-0-333-94619-0
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Library of Congress Cataloging-in-Publication Data
Johnson, Nevil.
Reshaping the British constitution :essays in political interpretation I
Nevil Johnson.
p.cm.
Includes bibliogaphical references and index.
ISBN 978-0-333-94620-6
1. Great Britain-Politics and govenment-1997- 2.
Constitutional law-Great Britain. 3. Constitutional history-Great Britain.
I. Title.
JN231.J64 2004
342.4102'9-dc22 2004054788
To Christopher
[W]e cannot have any absolute security; in all governments it is necessary
to trust somebody ... If you weary of democracy you know the way to cast
it off by placing judicial guardians over your Parliament, but have you any
greater assurance than before? Quis custodiet ipsos custodes? (Adapted from
Dudley Digges the younger's pamphlet of 1643 on The Unlawfulness of Sub
jects taking up Armes against Their Soveraigne in any case what soever and cited
by]. Goldsworthy, The Sovereignty of Parliament, OUP 1999, p. 262)
Contents
P~a ~
Introduction 1
Part I The Underpinnings of a Customary Constitution 7
1 Constitutions and Constitutionalism 9
The constitution as practice 9
Customary and codified constitutions: is Britain so exceptional? 11
The underpinnings of liberal constitutionalism 15
Some implications of a customary constitution 18
Notes 20
2 Foundations and Principles 21
Consent and rights 21
The rise and fall of negative liberty 25
Authority and sovereignty 28
A parliamentary executive 31
Weakening the foundations of the customary constitution 34
Notes 38
3 Institutional Pluralism and Subsidiarity 40
A heritage of diffused powers: local self-government 40
England's partners within the United Kingdom 44
Pluralism harnessed to public purposes 46
No theory of the State, but more power for the central
government 48
Notes 52
Part II Institutions and Practices under the
Customary Constitution 55
4 Symbols of Unity: Monarchy and Religious Establishment 57
Constitutional monarchy 57
Symbolic and representational roles 61
The Crown as a legal construct 62
Crown and Church 67
The churches 'established by law' 70
The monarchy, the Church and the moral life of the nation 74
A rationalisation of monarchy? 75
Notes 76
vii
viii Contents
5 A Parliamentary Government: the Executive Power 79
A parliamentary executive 79
From cabinet government to prime-ministerial government 81
Responsibility and accountability in constitutional theory 85
Accountability at large: the impulse to blame 90
The constitutional status of civil servants 94
The discretion of ministers as a centralising dynamic 97
Notes 100
6 Parliament: the Foundation of Legitimacy 102
The House of Commons and the function of control 103
The function of legislating 106
From administrative to political scrutiny 111
Institutional differentiation within the House of Commons 117
The House of Lords 124
What survives of sovereignty and government in and
through Parliament? 129
Notes 136
7 The Judiciary in the Constitution 140
The independence of the judiciary 140
The judiciary as interpreter of the common law 144
Recognition of a domain of public law 149
The judiciary in public life and popular involvement in
administering justice 153
Notes 156
Part III Reshaping the Constitution 159
8 The Customary Constitution in the Melting-pot 161
The reform agenda 161
The rhetoric of reform: democratisation and modernisation 166
Discarding history and tradition 168
Notes 172
9 Institutional Innovation: Devolution and Decentralisation 173
Devolution models: the scheme for Scotland 173
Devolution model 2: devising a scheme for Northern Ireland 182
Devolution model 3: a qualified scheme for Wales 188
The models of devolution compared 193
Further steps towards decentralisation in the reform
programme 199
Notes 206
10 Reform at the Centre: the Primacy of Politics 209
Reform in Parliament: the House of Lords 210
Contents ix
Reforming the House of Commons 216
The political executive: presidential pretensions 223
Politicians and officials: the weakening of the civil
service ethos 228
Notes 235
11 Human Rights and the Reinforcement of the Judiciary 23 7
From 'liberties and privileges' to a code of rights 237
Incorporation of the European convention of rights into
British law 240
The initial impact of the Human Rights Act 1998 245
Human rights decisions: some illustrative examples of
judicial conclusions 248
Innovation and continuity in interpreting rights 251
Proposals for further institutional reforms affecting
the judiciary 255
Notes 258
12 The European Union: Towards a European Constitution 261
From the European Communities to a European Union 261
The impact on discretion in policy and law-making 264
British law and EU law: who interprets what? 268
Enlargement of the EU and the prospect of a constitution
for Europe 272
Playing down the consequences of 'ever closer union' 278
Notes 281
13 Beyond Custom and Tradition: the Politics of 'What Works' 284
The nature of the process of constitutional reform 284
From precedent and history to performance and the future 286
How is the form of government to be designated? 288
Pluralism, diffusion of powers, checks and balances 296
The rule of law and the rights of citizens 300
The erosion of self-government 304
Reshaping the constitution to suit the needs of
elective dictatorship 308
Notes 315
Bibliography 318
Political institutions and politics 318
Law and the constitution 319
Theory and history 319
Church and State 319
Index 321
Preface
My concern with the virtues and peculiarities of the British constitution is
of long-standing and a subject on which I have expressed views many times
before. The notion of writing about it again came to me almost five years
ago, prompted in large part by the winds of change that were buffeting what
at that time I was tempted to call 'the old order'. I sketched out my ideas
for a full-length study of constitutional change very quickly, but as so often
happens many other preoccupations came along to interfere with rapid
completion of this work. By the end of 2002 perhaps just over half of it was
written and I began to wonder whether I would ever complete the work.
However, with a big effort in the course of 2003 I managed to do that,
though as time went on I became ever more conscious of the fact that con
stitutional reform had become a dynamic process that was making it impos
sible to identify any natural point of conclusion for this study. As a result I
remain conscious of the many strands of unfinished business that lie about
in the text. Nonetheless, I believe that there has been enough experience of
the process of reshaping the British constitution to justify even at this stage
an attempt to assess its significance and the principal characteristics of the
reform measures so far put into effect.
I am deeply indebted to several people who have helped and advised me
in the preparation of this work. I am grateful to Matthew Flinders of
Sheffield University for penetrating comments on the whole text, and to
Gunnar Beck, Legal Adviser to the European Scrutiny Committee of the
House of Commons, for comments in particular on Chapters 11 and 12. My
thanks are due to Lady Hale of Richmond, now a member of the Appellate
Committee of the House of Lords and a Visiting Fellow of Nuffield College,
for her scrutiny of Chapters 7 and 11 which saved me from a number of
errors in matters of law. I record my gratitude to the late Geoffrey Marshall,
sometime Provost of The Queen's College, Oxford, for the stimulating and
informative conversations on constitutional questions that we had from
time to time, and to the late Max Beloff, a passionate admirer of the cus
tomary constitution right to the end, with whom the state of that consti
tution was a frequent topic of discussion. I am grateful too to the Revd Keith
Triplow, Rector of Kingston Bagpuize, for his guidance on the duties of a
parish priest, and to Philip Giddings of Reading University for advice he
gave me on matters relating to the Church of England. I must also record
affectionate thanks to my son, Christopher Johnson, a Clerk in the House
of Lords, for his careful reading of those sections that deal with the second
chamber as well as those concerned more generally with Parliament. I have
ventured to dedicate this book to him in the hope that it will not cause him
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