1688 Conceded power to Parliament and is effectively appointed by

Parliament. The history of the UK constitution tells a story of conflict

between different interest groups to control Parliament and the execu-

tive, in particular the monarch, the land-owning families, organised

labour, and latterly political parties supported by business interests.

On the other hand the fact that we can argue about where power lies

suggests that the position may not be so straightforward. The UK

constitution has been described in terms more akin to the power-

sharing variety, as a ‘mixed’ or ‘balanced’ constitution, where power is

shared between different interest groups not necessarily in different

institutions. This relates to Aristotle’s famous division of constitu-

tions. Aristotle regarded participation in the life of the community as

essential to human well-being. ‘Justice’ consisted of each person play-

ing his allotted part in the community whether as slave or king, an idea

that throughout history has been used to protect established inter-

ests. Aristotle postulated three basic forms of constitution: monarchy

which provides authority; aristocracy (literally government by the

‘best’ people) which provides wisdom; and democracy which provides

power. Aristotle himself favoured a constitution that mixed these

elements within a legal framework thereby promoting the values of

equality and balance beaten competing forces. The nineteenth-century

commentator de Toqueville (1945, p. 285), writing about the USA, saw

courts and lawyers as a kind of aristocracy who are a check against the

mob. ‘Men who have made a special study of the laws derive certain

habits of order, a taste for formalities and a kind of instinctive regard

for the regular connection of ideas which render them very hostile to

the revolutionary spirit and to the unreflecting passions of the multi-

tude. A leading contemporary judge, Lord Hoffmann (1999), referring

to political parties, described the UK constitution as ‘aristocratic.’

During the eighteenth century in particular the British constitution

was often portrayed as a mixed constitution with the King, the House

of Lords and the House of Commons supposedly working together

in harmony each representing different ‘estates’ or interests in the

country (see Chapter 5). However, until the beginning of the twentieth

century the aristocracy in the House of Lords was dominant, although

its influence had been steadily declining. Lord Salisbury was the last

prime minister to sit in the House of Lords (1895–1902). The majority,

who owned no land and had no vote were said to enjoy ‘virtual’

representation through the landowners who were regarded as having a

natural stake in the country. Until the extension of the franchise to

most of the population, which evolved by stages from 1832 to 1928,

elections to the Commons were largely controlled by aristocratic land-

owning families with a power base both in the Lords and in local

affairs. Suspicion of democracy and the privileging of aristocrats have

been powerful themes in English constitutional thought in competi-

tion with the liberalism of Locke, Paine and later Mill (see Chapter 2).

For example Edmund Burke (1729–1797), concerned at the violence

unleashed by the French revolution, thought that the notion of indi-

vidual rights was nonsense and favoured a society based on custom and

tradition which evolved pragmatically guided by paternalistic aristo-

crats. The relatively peaceful development of the UK governmental

system during the eighteenth and nineteenth centuries is often attri-

buted to the openness and flexibility of the ruling classes in absorbing

others into their ranks, particularly the new industrial wealth.

Today, the institutions of the mixed constitution remain but their

importance is debatable. The monarch does not in practice exercise a

veto and the House of Lords has lost most of its legal power to veto

the Commons. On other hand the House of Lords retains genuine

power and the reforms that are currently in progress may reinforce its

political influence although they are unlikely to enlarge its formal

powers. The common law in the hands of the courts and lawyers is

also an important source of power. Indeed, in R. v. Secretary of State

for the Home Department ex parte Fire Brigades Union (1995), Lord

Mustill spoke of the courts occupying the ‘dead ground’, where other

means of protecting the citizen have failed.

King himself suggests that recent uncoordinated developments in the

UK constitution may be producing the power-fractionated model.

These developments include devolution of substantial lawmaking and

executive power to elected bodies in Scotland and Northern Ireland,

devolution of a smaller amount of lawmaking and executive power to

an elected assembly in Wales, the introduction of referendums in respect

of some political issues, what King calls the ‘disembowelling’ of local

government by dispersing its functions to many different private and

public bodies, membership of the European Union, House of Lords

reform without a clear purpose, the delegation to the Bank of England

of the power to influence the economy by setting interest rates and the

increased volatility of the electorate. Perhaps of most importance from

the legal perspective the courts have become more prominent. This has

been generated by several factors, notably the alleged supremacy of EC

law, the enactment of the Human Rights Act 1998, an increasingly

active and wide-ranging approach to reviewing government action and

a new willingness on the part of the higher judiciary to enter into public

debate about constitutional matters.

1.2 Civic Republicanism

Power-sharing constitutions have close links with the classical ‘civic

republican’ tradition. This tradition inspired by Aristotle and devel-

oped in Ancient Rome, challenged the idea of Plato that government

should take the form of an elite of experts. It was revived in the

Renaissance, together with the development, promoted by Machiavelli

(1469–1527), that disagreement rather than harmony was the natural

state of political communities. Republicanism influenced the English

civil war in the mid-seventeenth century, was developed by eighteenth-

century advocates of limited government such as Montesquieu (1689–

1755) and influenced the French and American revolutions in the late

eighteenth century.

Republicanism explains many traditional constitutional concepts

and values. Its central idea is that no single interest group, not even a

majority, should be dominant in society so as ‘to be able to interfere

on an arbitrary basis – at their pleasure – with the choices of a free

person’ (Pettit, 1997, p. 271). Republicanism is often used as a contrast

with an inherited monarchy. In this sense many European states,

including France and Germany are republics. However, republicanism

does not require any particular form of government but requires that

no single group should be in a position of dominance.

Crucially, republicanism distinguishes between non-interference and

non-domination, the latter meaning the existence of objective limits on

the power to interfere (see Pettit, 1997). Domination means the power

to interfere. A person in a dominant position may in fact be liberal

minded and not interfere but it is nevertheless offensive that such a

relationship of domination should exist. A kind master is still a master

so that a person subject to domination is not free. Republicanism

therefore insists that powers to interfere should be defined by law and

that those exercising such powers should be forced to justify any

interference with others. Thus republicanism embodies the traditional

virtues of the rule of law such as that no one should be punished or

restricted without legal authority, that laws should be justified on the

basis of the public interest, and that judges should be impartial (see

Chapter 5). Republicanism also entails the belief that governmental

institutions be representative of different sections of the community

and that everything the government does should be justified by reason

9

The Nature of Constitutional Law

and open to challenge by the people. Republicanism also requires that

there should be protection against vested interests, not only within

government but also, for example, those of business and professional

organisations.

Perhaps the hallmarks of the republican tradition are firstly its

emphasis on equality and secondly its reliance on traditional mechan-

isms in the form of checks and balances between the different branches

of government so as to ensure that no one group can be dominant.

These include the following which are represented in imperfect form in

the UK constitution.

. ‘federalism’ which divides up government responsibilities between

central and local units;

. bills of rights preventing governments from interfering with defined

individual rights or, less common, requiring governments to posi-

tively protect stipulated interests such as health or education;

. ‘checks and balances’ between branches of government such as

judicial review of the executive;

. provisions requiring ‘super-majorities’ of the legislature such as a

75% vote on particular matters. These devices are used in connec-

tion with the Council of Ministers of the EC and also in relation to

certain powers of the Scottish Parliament and the Welsh Assembly.

Such requirements of course amount to minority control and are

unlikely if they are frequently used to withstand the inexorable force

of the majority.

. provisions for referendums on particular issues. These are increasing

in the UK.

Above all republicanism rejects the traditional English attitude to

constitutional affairs which relies heavily upon networks of officials

linked by personal relationships and upon informal and voluntary

custom and practices generated within government itself. For example

it is often asserted that the anomalies and lack of formal controls in our

constitution do not matter. This is because we can rely on the general

benevolence of our rulers whom we can trust to honour voluntary codes

whether written or unwritten, what Peter Hennessey has called the

‘good chaps’ theory of the constitution (below Chapter 3). As against

this for example, the Commissioner for Standards, appointed as an

independent regulator to counter corruption in Parliament, recently

published a letter claiming that her work had been undermined by

campaigns against her by MPs, civil servants, ministers, and even the

Speaker (see Times, 5 December 2001).

10 General Principles of Constitutional and Administrative Law

However, the UK constitution is arguably moving in a republican

direction influenced in particular by the Human Rights Act 1998, the

legalistic culture of the European Union and the legalistic nature of the

devolved regimes in Scotland, Wales and Northern Ireland against

a background of wide spread distrust in the integrity of politicians.

This might be a counter-trend to that towards fragmentation which

I mentioned earlier.

1.3 Representative Democracy

Democracy cannot easily be justified as the most efficient form of

government but rests on ideas of human equality and dignity. As with

many general political and legal ideas there is no consensus about what

democracy means and what it requires in practice. The basic meaning

of democracy is that of government by the people as a whole. However,

in any but the smallest community, direct democracy is impracticable

and the notion of democracy has been narrowed to mean government

with the consent of the people. This is a more slippery idea since an

authoritative decision maker is needed to interpret the people’s con-

sent. The UK constitution is democratic in the sense that the govern-

ment’s authority derives from the consent of the people (or at least

those whom Parliament permits to vote). This is given every four or five

years in a general election in which the electorate choose representa-

tives who form the main part of the legislature, the House of Commons.

The House of Commons in turn chooses the leader of the executive who

appoints the rest of the executive.

Democracy also requires that nothing should be immune from

change and that the state must not permanently commit itself to any

particular set of social, economic or political values Thus no one

should be able to make irreversible decisions which tie the hands of

future generations. James Madison for example, one of the founders

of the US constitution, thought that all laws should be ‘sunset laws’

which automatically lapse after a given period of time. UK law does

not go this far but the possibility of changing any law, including the

constitution itself, is secured in the UK by the doctrine of parlia-

mentary supremacy according to which no Parliament can bind its

successors or indeed itself.

Democracy is also said to mean that laws should be made by a body

that represents the wishes of the majority from time to time. Parlia-

ment votes by means of a simple majority, and elections are fought on

the basis of a ‘relative majority’ in the sense that the candidate with

11

The Nature of Constitutional Law

more votes than any other candidate is the winner. (If we combine

these rules we can see that it is not unlikely for a measure to be passed

that enjoys the support of only a small minority of the people.) The

nineteenth-century commentator de Toqueville, in his famous attack

on the ‘tyranny of the majority’ (de Toqueville, 1945, pp. 269–71),

made the point that there is no particular reason to suppose that a

majority is right about anything any more than is the case with an

individual. Majorities merely represent force and magnify the vices of

individuals. We use majority voting only because it gives a clear out-

come and because it is the fairest system of participatory decision

making that we can think of in that it gives each participant equal value.

Another aspect of democracy emphasises that every member of the

community is of equal value. One interpretation of this requires that

individuals be protected against majority decisions that threaten

equality since majoritarian democracy would entitle the majority to

oppress minorities. If we wish to put limits on the majority we might

therefore have to use non-democratic mechanisms such as the courts.

In R. (Alconbury) v. Secretary of State [2001] 2 All ER 929 at 980,

Lord Hoffmann endorsed this general view of democracy by saying

that although decisions as to what the general interest requires are

made by democratically elected lawmakers, ‘respect for human rights

requires that certain basic rights of individuals should not be capable

in any circumstances of being overridden by the majority.’

Perhaps the most well-known version of this approach is that of

Dworkin (1996), who from an American liberal perspective, offers

what he calls a ‘constitutional conception of democracy. This regards

democracy as what Dworkin calls ‘government subject to conditions’,

these being the equal status of all citizens. Dworkin argues that

equality depends on individual liberty and that there is no logical or

moral reason why these conditions should be under the control of the

majority or indeed any other group. Dworkin favours a compromise

between courts and politicians with the courts having the power to

override the majority in defence of fundamental freedoms. He suggests

that the courts may be better guardians of democracy than politicians.

They are under less political pressure and are required to consider both

sides of the case in public and to justify their decision by reasoning (see

also Allan, 2001, 1993; cf. Steyn, 1997).

Other liberals, for example Waldron (1998), preferred the majority

on the ground that, despite the risks involved, it is better that the

majority should have the last word in the interests of fairness,

accountability and the desire that those affected by a law should be

able to participate in its making. On the other hand it could be argued

12 General Principles of Constitutional and Administrative Law

that our practice of making decisions through elected representatives is

an unfortunate second best because it would be impracticable for all to

participate directly in decision making in an ideal democracy. This

being the case it seems reasonable to put curbs on our representatives

enforced by a trusted external body such as a court.

1.3.1 The nature of representation

Our system of democracy involves government by elected representa-

tives. The term representative is ambiguous. In one sense a repre-

sentative is the agent of whoever he represents reflecting their wishes.

In another sense a representative substitutes for those he represents

exercising his own judgement in the same way that a trustee repre-

sents his beneficiaries. This creates several problems. In particular

is a representative elected as a member of a political party bound or

entitled blindly to follow the party line? Is a representative bound

to those who voted for him to obey the ‘mandate’ embodied in his

party election manifesto? There is also the question of how far MPs

are entitled to assist private interests for whom they may act as con-

sultants or advisers.

There is a strong tradition that the House of Commons does not

directly represent those who elected it in the sense of being required to

follow their wishes. Moreover Parliament is self-governing and immune

from interference by the courts (see Chapter 10). In the eighteenth

century the idea that the people should be directly represented was

widely regarded as unconstitutional. Therefore in order to protect their