Independence, legislators, like judges, could claim to be insulated from

populist pressures. In his famous speech to his Bristol electors in 1774

Burke said: ‘if government was a matter of will upon any side, yours

without question ought to be superior. But government and legislation

are matters of reason and judgement and not of inclination’ and

‘mandates issued which the member is blindly and implicitly to obey . . .

these are things utterly unknown to the law of this land and, and which

arise from a fundamental mistake of the whole order and tenor of

our constitution.’ Similarly, in 1784 Lord North said of members of

Parliament that: ‘to surrender their own judgments, to abandon their

own opinions, and to act as their constituents thought proper to

instruct them, right or wrong, is to act unconstitutionally . . . they were

sent there as trustees to act for the benefit and advantage of the whole

kingdom’ (see Briggs, 1959, p. 98). Writing in 1867, Walter Bagehot

thought that an elite made up of reasonably independent men (sic)

of property to whom the populace defers should get on with the

13

The Nature of Constitutional Law

practical business of running the government without outside inter-

ference. Bagehot, along with many of his propertied contemporaries,

feared popular democracy because in his view it was likely to lead to

the government being captured by powerful vested interests who could

manipulate the mob. The independence of Parliament has also been

endorsed in modern times. Erskine May, the authoritative guide to

parliamentary law and practice, asserts that an MP’s vote is to be cast

neither for locality nor for party but for the good of the nation and

according to conscience (Nolan, 1997, p. 82). However, there is no

method of policing this other than through Parliament itself which is

controlled by political parties.

The principle that our democracy is channelled through Parliament

has significantly influenced the development of the constitution. For

example the notion that government is accountable to Parliament has

been used to deny the existence of a public right to access to government

information (see British Steel v. Granada TV (1981); Bushell v. Secre-

tary of State for the Environment (1981)). The Bill of Rights 1688 con-

ferred a right to freedom of speech on members of Parliament (Art. 9),

but the only public political right it conferred was to petition the Crown.

The ordinary courts have no jurisdiction over the internal proceed-

ings of Parliament which polices itself, assisted since 1997 by the office

of Parliamentary Commissioner for Standards and by the Committee

on Standards and Privileges. At local government level, however, the

courts have attempted to compromise between traditional values and

the reality of party discipline by holding that while it is lawful for a

councillor to vote according to the party whip, the councillor must still

consider at each vote whether there are reasons of conscience for not

doing so (R. v. Waltham Forest DC ex parte Baxter (1988)).

The courts defer to representative democracy at central government

level but less so at local level. Usually the view has been taken that,

because of its subordinate nature, the democratic nature of a local

decision-making body does not entitle it to any special consideration

(see R. v. Somerset CC ex parte Fewings (1995) per Laws J; compare

the different views expressed in Roberts v. Hopwood (1925) both in the

House of Lords and the Court of Appeal). The rule of law requires

that a democratic mandate cannot bind an authority to decide in a

particular way to the exclusion of other concerns required by the

governing legislation, but this of course begs the question, as to what

assumptions the court should make about democracy when interpret-

ing the legislation (see Bromley LBC v. GLC (1983)).

In the case of central government the courts have been influenced by

the existence of parliamentary scrutiny. They have not withheld from

14 General Principles of Constitutional and Administrative Law

review altogether. Indeed they have emphasised that legal review by the

courts is independent of political accountability (Hoffman-La Roche

Ltd. v. Trade and Industry Secretary of State (1974)) but have deferred

to executive discretion particularly in cases involving sensitive political

or financial issues (Hammersmith and Fulham LBC v. Secretary of State

for the Environment (1990); or where Parliament itself is involved

(compare the majority with Lord Mustill in R. v. Secretary of State for

the Home Department ex parte Fire Brigades Union (1995)). Under the

Human Rights Act 1998, the question of deference to political discre-

tion arises in acute form. In many cases the right in question can be

overridden by various categories of the public interest subject to the test

that interference with the right ‘is necessary in a democratic society’.

The courts will defer to ‘an area of judgement’ within an elected body in

cases which involve matters of social or economic policy (Chapter 18).

Thus in his famous dissent in Lochner v. New York (1905), Holmes, J

emphasised that the social or economic policies adopted by govern-

ments were not appropriate matters for constitutional review. How-

ever, this must be a question of degree in that, according to the broader

view of democracy, there may be cases where government policies of

any kind place at risk basic values of equality and freedom.

Recent cases suggest an increasing concern for direct public

involvement in governmental decision making. Decision-making pro-

cesses relating to transport, planning and the environment provide for

public inquiries, and the courts have recognised that public opinion,

even if ‘irrational’ should be taken into account in relation to sensi-

tive development proposals even if the decision is already adequately

informed (see Berkeley v. Secretary of State for the Environment (2000)).

At a political level a convention may be emerging that the govern-

ment is morally bound by the promises in the election manifesto on

which it was elected. Referendums have been held in relation to EC

membership (1976) and devolution proposals and arrangements for

referendums have been placed on a legal footing (Political Parties,

Elections and Referendums Act 2000). The government has under-

taken to hold a referendum in relation to the proposal to enter the

European single currency.

Summary

1.1 This chapter discussed some general themes which influence the different

ways in which constitutions develop and which will be drawn on throughout

the book. We first discussed the function of a constitution emphasising that a

15

The Nature of Constitutional Law

constitution deals with the most basic principles and values as to how the

community should be governed. We then looked at broad types of constitution

using King‘s typology, namely ‘power-sharing’, ‘power-hoarding’ and ‘power-

fractionated’ constitutions each of which has advantages and disadvantages.

We characterise the UK constitution as power-hoarding with a tendency to

become fractionated. It may be that recent constitutional reforms, particularly

devolution, have begun to disperse political away from the central executive.

1.2 We distinguished between descriptions of the constitution and evaluations of

it and between the constitution in its normative sense of rules and the actual

political relationship between the different parts of government. We pointed

out that, while the rules of the constitution may facilitate or exclude particular

political outcomes, at any given time the two do not necessarily correspond.

The principles of the UK constitution are sufficiently open-ended to permit

a wide range of political outcomes. We contrasted the political relationship

between the executive and the legislature with that between the courts and

the other two branches.

1.3 We used the notion of constitutionalism to refer to values which are intended

to limit the powers of government and to make government accountable. We

mentioned the traditional doctrine of the separation of powers between the

legislature, judiciary and executive, pointing out that it has some influence on

the UK constitution but that, because of the pragmatic and evolutionary nature

of the UK constitution, it has not been systematically adopted.

1.4 We emphasised the wider principle of civic republicanism. This links many of

the constitutional concepts and values offered by different perspectives. Civic

republicanism does not substantively limited the power of government but

attempts to ensure that no particular interest group, not even a majority, can

dominate the government. It relies on mechanisms which disperse power in

order to achieve this. In relation to this we introduced examples such as that of

the separation of powers, judicial review, fundamental rights, and the mixed

constitution representative of different interest groups. The notion of dispersal

of powers includes but is wider than the doctrine of the separation of powers

and influences for example, devolution and the debate on the future of the

House of Lords. According to the republican perspective, informal conventional

restraints whereby those in power follow a benevolent practice of not interfer-

ing are inadequate since human dignity requires formal constraints on power.

1.5 We discussed the principles of representative democracy drawing attention to

the problems of majoritarianism and the ambiguity in the notion of repre-

sentation in relation to the independence of a representative, in particular from

party political control. We also briefly considered the courts’ attitude to

democracy. This raises the question whether there are certain basic principles

which are essential to democracy such as equality and freedom of expression

which should be outside the reach of democratic decision making. There is no

consensus on these matters. The courts have not deferred to local democracy

but have been more cautious in interfering with central government powers.

Further Reading

Allan, Law, Liberty and Justice, chapter 1.

Ewing, K. (2000) ‘The politics of the British constitution’, Public Law 405.

Finer, Bogdanor, Rudden, Comparing Constitutions, chapter 1.

16 General Principles of Constitutional and Administrative Law

Harlow, C. (2000) ‘Disposing of Dicey: from legal autonomy to constitutional dis-

course’, 48 Political Studies, 356.

Held, Models of Democracy, chapter 10.

King, Does the United Kingdom Still have a Constitution?

Laws, (1995) ‘Law and democracy’ Public Law 72.

Laws, (1996) ‘The constitution, morals and rights’ Public Law 622.

Pettit, Republicanism.

Seidentop, Democracy in Europe, Chapter 5.

Exercises

1.1 To what extent does the UK constitution conform to Professor King’s system

of classifying constitutions?

1.2 ‘A constitution is not the act of a government but of a people constituting a

government and a government without a constitution is power without right’

(Paine). Discuss in relation to the UK constitution.

1.3 To what extent should the courts defer to elected bodies?

‘That every Member is equally a Representative of the whole (within which by

1.4

our particular constitution, is included a Representative not only of those who

are electors, but of all the other subjects of the Crown of Great Britain at home

and in every part of the British Empire, except the Peers of Great Britain) has,

as I understand, been the constant notion and language of Parliament’

(Speaker Onslow (1728–61). Comment. To what extent do these remarks

apply today?

1.5 There is a proposal in your town to build a secure hospital for sex offenders.

Your MP is a member of the government the election manifesto of which

included a promise to ensure that ‘sex offenders are kept off the streets’.

A public inquiry into the scheme is to be held and you ask your MP to appear

at the inquiry to represent local public opinion which is against the proposal

because of fears of escapes and the likely fall in property values. The MP

refuses to appear on the ground that the government is committed to the

scheme. The inquiry inspector decides that because expert evidence is that

the risk of an escape is negligible the views of the local people are irrelevant.

Discuss any constitutional implications.

1..6 To what extent should a constitution provide for direct public participation in

governmental decision making? Outline the advantages and disadvantages of

a referendum as a means of making government decisions.

2 Constitutional Values

2.1 The Nation State, the Enlightenment and the

Social Contract

A convenient starting point is the emergence of the independent nation

state. This is based on the concept of a republic developed in ancient

Rome. It re-emerged throughout Europe in the sixteenth century for

military purposes. Following the collapse of the unifying authority of

the Catholic church, the nation state displaced the medieval diffusion

of power between king, church, corporations and feudal barons as the

ultimate source of political authority. In England, however, the com-

mon law, claiming to be rooted in community custom and values,

opposed the development of the idea of an all-powerful state.

The rise of the state corresponded to the beginning of the Enlighten-

ment, which reached a high point in the late eighteenth century and

which still provides the dominant intellectual force in European soci-

eties. Enlightenment or ‘modernist’ thinking places the individual at the

centre of the political process and regards reason as the key to human

happiness. One task of the Enlightenment was to justify state power by

reason. As an impersonal and neutral form of organisation the state,