British Constitution Research Articles

Czy parlament może zmienić mężczyznę w kobietę? Granice i miejsce zasady supremacji parlamentu w brytyjskim porządku konstytucyjnym wobec europejskich procesów integracyjnych (wybrane problemy)

The political system of the United Kingdom of Great Britain and Northern Ireland is of interest to researchers for several reasons. One of the most important motivations certainly involves the unique construction of its Constitution, the content of which is not formulated in a single legal act of a supreme status. This unwritten Constitution encompasses at least four parts. The most important part is undoubtedly constituted by one of three principles of the political system, namely the principle of the sovereignty (omnipotence) of parliament. This principle, which is regarded as a constitutional principle by some and as a principle above the Constitution by others, constitutes the core of British constitutional law. The topic of this paper is an attempt to indicate the boundaries of this principle in the British constitutional order and to place it in relation to remaining principles. The boundaries of this principle have been considered by British constitutionalists on numerous occasions. Considerations on the relation of this principle to the remaining elements of the Constitution have been the subject of interest for courts of law, including the House of Lords, which used to function as the court of last instance in judicial proceedings prior to the 2005 reform. It is worth emphasizing that even the lords/judges frequently disagreed on the boundaries of the principle and even on whether the principle can be examined by any court. There were also views that the principle is only a virtual construct, and even if it had ever applied to the political system at all, it can no longer be referred to, given contemporary European integration processes. The complicated combination of elements of the British constitution with the presence of the United Kingdom in the structures of the European Council and European Union (preceded by the European Community) have produced a number of interpretations of the principle of the omnipotence of the parliament in the new political reality the UK has found itself in. It was the adoption of the European Communities Act 1972, followed several decades later by the adoption of the European Union Act 2011 that led to the discussion on the construction of the British Constitution and either the approval or rejection of the concept that the Constitution of the United Kingdom with its meta-principle should be interpreted anew.

THE OFFICE OF THE CROWN

AbstractA troubling veil of mystery still shrouds the central institution of the British Constitution – the Crown. In this paper, I examine the modern utility of five historical doctrines: the doctrine of the “King's two bodies”; the doctrine that the Crown is a “corporation sole”; the doctrine that the King can “do no wrong”; the doctrine that (high) public offices are “emanations” of the Crown; and the doctrine that the Crown is “one and indivisible”. Using some insights from social ontology, the history of office in the Western legal tradition, and the sociology of role and status, I argue that the first four of these doctrines can be refashioned into a conception of the Crown as an office. An office is an enduring institutional entity to which individuals bear a relationship from time to time, but which is separate from any individual incumbent and is to be considered in legal analysis as a separate acting subject. Using the logic of office, official personality and official action, I distinguish between the Queen, the Crown, Her Majesty's Government and the Commonwealth and argue that together they provide a serviceable model of the modern British Constitution. The final doctrine, however, must be abandoned – the Crown is plural and divisible and this must be taken into account when using the Crown to reason about the UK's relationship to other constitutional orders.

On the ground and on tap—law reform, Australian style

ABSTRACTBeing governmental, the law reform processes of a country are closely associated with the constitutional framework of the country concerned. In the case of Australia, the framework combines English and American constitutionalism. Professor Saunders neatly describes the result as ‘hybrid, derivative but eventually Australian’. After a brief overview of sources of law reform advice in Australia, the article focuses on one part of Australian law reform processes—law reform bodies established by statute that advise in a particular area (‘specialist statutory advisors’). The main question the article poses is—like the constitutional framework, are specialist statutory advisors ‘hybrid, derivative but eventually Australian’? The research hypothesis is informed by an influential stream of Australian historical and legal thought. A number of commentators have propounded that Australian democracy is distinctive, and that Australians have time and again accepted a commanding role for government, and continue to give it great respect. It is said that Benthamite utilitarianism and legislation lie at the heart of the dominant political ideology. The article examines the Australian law reform scene in the light of these theories. The research hypothesis is that these distinctive aspects of Australian political life will manifest themselves in processes of law reform, namely specific legislative processes for facilitating law reform. The article identifies and analyses specialist law reform agencies established under statutes passed by parliaments of the Commonwealth, the States, and the Territories. This analysis is followed by an assessment of specialist advisors. They are compared with two other types of law reform bodies: Ministerial committees and generalist law reform bodies. The article concludes by reflecting on how specialist statutory advisors reflect the country’s constitutional framework. In their own way—on the ground and on tap—they too are found to be ‘hybrid, derivative but eventually Australian’.

The British Constitution: Thoughts on the Cause of the Present Discontents

This paper, the text of the Robin Cooke Lecture given at the Victoria University of Wellington in December 2017, examines the constitutional implications of the UK’s decision following the referendum of June 2016 to leave the European Union. Noting that by the latter half of the twentieth century many were arguing that the prospect for the British constitution was one of progressive paralysis, it argues that this prospect was avoided by the UK’s embrace of continuing European integration. For this reason, the UK’s withdrawal from the EU presents a series of constitutional challenges that are more complicated than the mantra ‘taking back control’ would suggest.

Introduction

Introduction Melvin I. Urofsky As all of you who have been following the news—whether in old-fashioned news­ papers (as I do) or on some electronic device —know, many colleges founded before the Civil War, such as Harvard and Georgetown, or even afterwards, such as Washington and Lee, have been reexamining the role of slavery in their early history. It is not that these schools have been unaware that slavery played a part—historians have long known that the value of chattel slaves funded many things other than the plantations south of Mason and Dixon’s line. Rather, it is the demand from students that universities openly face up to these facts and, if possible, do something to atone for it, that is driving schools to take a look into the darker recesses of their past. This is the context in which Paul Finkelman’s new book, Supreme Injustice, arrives. Now the president ofGratz College in Philadelphia, Paul has long been one of the leading historians of slavery, especially the role it has played in the American court system. In his new book, he examines the role ofthe three most important Justices that sat on the high court in the years before the Civil War—Chief Justice John Marshall, Justice Joseph Story, and ChiefJustice Roger Taney. What is the newest, and perhaps most startling part of this book, is the extent to which Marshall, the Great Chief Justice, owned and sold slaves. Because of the importance of these findings, as well as Finkelman’s argument that the three men could have changed the Court’s slavery jurisprudence, you will find two reviews of his work in this issue. First, Grier Stephenson looks at the entire book and the treatment of all three Justices in his “Judicial Bookshelf.” Because Finkelman’s findings about John Marshall are so new and surprising, we invited Charles Hobson, the editor ofthe John Marshall Papers, to look in particular at the chapter dealing with Mar­ shall. We have also invited Dr. Finkelman to respond in the next issue if he chooses to do so. In most histories of American jurispru­ dence, including mine, the place we usually start is at Runnymede with King John signing the Magna Carta. The reason is simple— 207 208 JOURNAL OF SUPREME COURT HISTORY Magna Carta started what will be called the “British Constitution,” which in fact is not a single document, but a series of laws passed during the ensuing centuries. When the U.S. Supreme Court first began hearing cases, there were many references to English law— after all, that was basically the only law those early Justices knew. Over the decades, as we built up our own body oflaw, one might have expected that there would be fewer references to the British Constitution and especially to Magna Carta. Derek A. Webb, former Supreme Court Fellow and associate in the Supreme Court and Appellate and Commercial Litigation and Disputes practice groups at the law firm Sidley Austin, however, suggests that Magna Carta has played a far larger role in Supreme Court cases than previously expected, and that role has continued right down to the present. There has always been some debate over exactly what the barons at Runnymede meant by “due process of law,” a debate that has been going on in American courts for decades. On the 800th anniversary of the Great Charter in 2015, Justices Antonin Scalia and Stephen Breyer took opposite sides in a case, with both of them citing Magna Carta as justification. Mr. Webb lists the cases and I think you will agree that we did not expect that many. I have mentioned a number of times that the field of constitution history is not a large one, and I have always been happy to be part of a discipline where most of us know each other. The article by Adam Winkler is another example of what my son has called “dealing with the usual suspects.” During several periods in American history there has been criticism of the courts, and especially of the high court, for its treatment of corporations, and especially of ascribing rights to them normally associated with natural persons. Adam...

DEMOCRACY, SOVEREIGNTY AND UNIONIST POLITICAL THOUGHT DURING THE REVOLUTIONARY PERIOD IN IRELAND,c.1912–1922

ABSTRACTThis paper examines ideas about democratic legitimacy and sovereignty within Ulster unionist political thought during the revolutionary period in Ireland (c. 1912–22). Confronted by Irish nationalists who claimed that Home Rule (and later, independence) enjoyed the support of the majority of people in Ireland, Ulster unionists deployed their own democratic idioms to rebuff such arguments. In asserting unionism's majority status, first, across the United Kingdom and, second, within the province of Ulster, unionists mined the language of democracy to legitimise their militant stand against Home Rule. The paper also probes the unionist conception of sovereignty by examining the establishment of the Provisional Government of Ulster in 1913, which was styled as a ‘trustee’ for the British constitution in Ireland after the coming of Home Rule. The imperial, economic and religious arguments articulated by unionists against Home Rule are well known, but the space given to constitutional rights and democratic legitimacy in the political language of unionism remain obscure. While the antagonisms at the heart of the revolutionary period in Ireland assumed the form of identity politics and sectarianism, the deployment of normative democratic language by unionists reveals that clashing ideals of representative government underpinned the conflict.

THE SPIRITS OF EDMUND BURKE

In the 1970s, when I began to take interest in Burke, not only was there was no collected Correspondence, but there was not even any modern edition of his Works. I successively purchased secondhand copies of the six-volume Bohn edition, and then (in the flush of a modest pay rise) of the Boston Little, Brown edition. The interpretive work was not extensive, and heavily influenced by two kinds of presentist preoccupation—both distinctively anglophone. One was the preoccupation with Burke's “contribution” to elements of the English Constitution—party government, the nature of representation, financial management—and his success in characterizing its customary, gradualist, pragmatic political culture, subsequently identified as “conservatism.” The other—prominent in American readings—comprised energetic attempts to recruit Burke into Cold War polemics: the clash between Burke and the French Revolutionaries (and their British supporters) presaging the clash between Marxism–Leninism and Western, free-market democracy. For scholars of a Straussian persuasion this involved reading into Burke a commitment to neo-Thomist natural law. These parameters spun an intellectually vertiginous confusion of issues. Quite how Burke's opposition to Paine was supposed to cohere with their shared defence of the America he (Paine) helped to create raised a number of historical issues. But instead of resolving these it was the implications of merely supposing them to be coherent that constituted the interpretive field. Controversies focused on whether Burke's political identity was conservative or liberal—anachronistic lexical markers, further complicated by their different connotations on either side of the Atlantic—and on how to characterize the “philosophical core” of his thinking. These too were contested in often disarmingly proleptic categories: liberal, utilitarian, collectivist. Looking back, this ideological fog was only made possible by the absence of any reasonably clear sense of eighteenth-century political-theoretical discourse within the categories and preoccupations of which to situate the man.

Whose Mandate is it Anyway? Brexit, the Constitution and the Contestation of Authority

AbstractOver the past year, a seemingly relentless barrage of Brexit‐related challenges has besieged the British constitution, which together have called into question the legitimacy of the political system. Yet, although it is tempting to regard the decision to hold a referendum on Britain's membership of the European Union as precipitating an acute constitutional crisis, this article argues that political and democratic dilemmas arising from Brexit are symptomatic of a wider constitutional malaise, the roots of which extend far beyond 23 June 2016. Flowing out of this, the article contends that the current crisis is one of ‘constitutional myopia’, fuelled by decades of incoherent reforms and a failure to address adequately democratic disengagement; and that the EU referendum and its aftermath have merely exposed the extent to which the foundations of the constitution have been eviscerated.

El efecto del Brexit en las leyes británicas de relaciones laborales y sus consecuencias comerciales y constitucionales

Once Article 50 has been triggered the UK has two years to negotiate its exit. The terms of the UK exit have to be agreed by the remaining 27 Member States’ Parliaments. EU laws remain applicable in the UK until its membership cease by the withdrawal agreement. Prior to an evaluation and an analysis taking place on Brexit and its effect it is important, not only to define this word but also to give the background, and the necessary procedures to be followed, to bring Brexit into effect. This will necessitate some discussion on political issues which are unavoidable in a chapter such as this. The thrust of the discussion will however be focused on how the British labour laws, commerce and the British constitution could be affected as a consequence of Brexit.

H.L.A. Hart's secondary rules: what do ‘officials’ really think?

AbstractThe impact of H.L.A. Hart'sThe Concept of Lawon modern legal thinking is undisputed. But does it reflect the reality of the way British institutions work? InConcept,Hart argued, amongst other things, that one of two ‘minimum conditions necessary and sufficient for the existence of a legal system’ was that ‘its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials’. In this paper, we begin the process of testing that statement empirically. Specifically, we ask whether non-judicial UK officials have a uniform view of what the rules of recognition, change and adjudication are, and whether they uniformly take an internal point of view towards them (i.e. whether they accept the rules and do not merely obey them). By way of a pilot study, thirty non-judicial UK officials were interviewed. Those officials comprised currently serving and retired senior civil servants, senior military officials, chief constables and local authority chief executives. The findings of the pilot study are presented in this paper. They allow us to deduce that Hart's statement might well be an inaccurate and incomplete description of the modern British constitution, and to comment on the implications of that conclusion.

H.L.A. Hart's secondary rules: what do ‘officials’ really think?

The impact of H.L.A. Hart's The Concept of Law on modern legal thinking is undisputed. But does it reflect the reality of the way British institutions work? In Concept, Hart argued, amongst other things, that one of two ‘minimum conditions necessary and sufficient for the existence of a legal system’ was that ‘its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials’. In this paper, we begin the process of testing that statement empirically. Specifically, we ask whether non-judicial UK officials have a uniform view of what the rules of recognition, change and adjudication are, and whether they uniformly take an internal point of view towards them (i.e. whether they accept the rules and do not merely obey them). By way of a pilot study, thirty non-judicial UK officials were interviewed. Those officials comprised currently serving and retired senior civil servants, senior military officials, chief constables and local authority chief executives. The findings of the pilot study are presented in this paper. They allow us to deduce that Hart's statement might well be an inaccurate and incomplete description of the modern British constitution, and to comment on the implications of that conclusion.

Party Norms and Constitutional Conventions

This paper considers the role of constitutional conventions in the British and Chinese constitutional orders. It challenges a growing, recent body Chinese literature that describes the modern Chinese constitution using ideas developed in the late 19th Century to describe the British constitution. It highlights ways in which these ideas are used to describe very different phenomena, then identifies certain Chinese political rules that might be described in conventional terms. In doing so, it questions assumptions about the nature of conventions in the United Kingdom. It uses the Chinese and British material to question the orthodox, customary account of conventions, which focuses on social practice. Finally, it explains why a satisfying account of conventions needs to explain why Conventions are binding, and sets out the consequences of this conclusion for either constitutional order.

Democracy, Translucidity and Accountability: The Eurozone vs. The Democratic Right to Know

Democracy, Translucidity and Accountability: The Eurozone vs. The Democratic Right to Know

'Because we can': Pluralism and structural reform in education

This article revisits a major paper published a decade ago by the political scientist Christopher Pollitt about the highly activist approach to the reform of public services taken in England in recent years. In education, the pace has accelerated since that paper appeared. The weaknesses of the current structures and processes resulting from this reforming zeal are enumerated. A particular focus is placed on the technocratic and market-oriented features of the current context, and their significance in the light of the moral, social, and cultural issues that lie at the heart of schooling. It is argued that analysts of educational governance pay insufficient attention to the distinctive characteristics of the British constitution and their impact on changes in structure and process within education, leading not just to a democratic deficit but also to a paucity of pluralism.

Franklin Redivivus: The Radical Constitution, 1791-1799

This article focuses on a concerted intellectual and political movement for the reform of the U.S. constitution, led by a constellation of radicals based in Philadelphia and inspired by the constitutional example of the French Republic. In response to what radical journalists like Benjamin Franklin Bache and Thomas Paine perceived to be the monarchial drift of the late Washington administration, they began to press for a drastic reform of the U.S. Constitution, pointing to the more egalitarian French constitution with its powerful unicameral legislature and weak plural executive, as their model. Through a survey of radical newspapers, pamphlets, and letters this paper reconstructs this mostly unknown constitutional polemic, as well as the sharp response it drew from John Adams, Alexander Hamilton, and other committed American defenders of the British constitution. A prologue establishes the enduring importance of Benjamin Franklin and the Pennsylvania constitution of 1776 for philosophes and radicals in both France and America. Part I examines the radical argument for restricting the prerogatives of the upper chamber, which proliferated in the aftermath of the Jay Treaty and pivoted on the supposedly more egalitarian unicameralism of the French constitutions of 1791 and 1793. Part II traces the radical argument for replacing the presidency with a plural executive committee, modeled on the French Directory of 1795, on the grounds that such an arrangement was not only less warped by monarchism, but also more suited to times of war and exigency, as demonstrated by the astonishing military success of the French Republic. The arguments presented here thus underline the surprising fragility and contingency of the constitutional settlement in the early republic and highlight the powerful Atlantic currents that shaped American constitutional debate in the era of the French Revolution.

La protection de la liberté du commerce au sein de la Constitution britannique

The British Constitution is characterized by a lack of formalization and by multiple sources. Nevertheless, it implements an effective protection of rights and freedoms. In the United Kingdom, the protection of the freedom of trade exemplifies the relationship not only between public authorities and individuals, but also between the legal sources which shape the constitutional order. The freedom of trade, protected by the common law, reflects the application of the constitutional principle of the Rule of Law, which limits the exercise of power and defends individuals against unjustified or irrational violations. However, other features of the British Constitution – the sovereignty of Parliament, yet limited by EU and international law, and judicial review of reasonableness of violations – relativize that protection.

“He Hath Ceased to Be a Citizen”: Stephen Burroughs, Late Loyalists, Lower Canada

“He Hath Ceased to Be a Citizen”Stephen Burroughs, Late Loyalists, Lower Canada John J. Garcia (bio) In 1799, one year after publishing the first volume of his Memoirs, Stephen Burroughs left New England and relocated to the Eastern Townships of Lower Canada. Living in a series of rural communities just north of the Vermont border, Burroughs maintained a farm, oversaw a local mill, and actively counterfeited the paper money of US banks prior to the War of 1812. Like the British province of Upper Canada, the Eastern Townships were a prime destination for Yankee emigrants resettling in the decades following the American Revolution.1 Scholars including Alan Taylor and John I. Little have argued that these “late Loyalists” abandoned the early Republic in response to offers of Canadian land made after 1791 by the lieutenant governor of Upper Canada, John Graves Simcoe. The term late Loyalist describes thousands of emigrants who rejected life in the new United States in favor of cheap land, low taxes, and little oversight in the way of state authority. And as Stephen Mihm has demonstrated, those same lax arrangements proved to be attractive to criminals and counterfeiters. Although the largely French-speaking region of Lower Canada’s St. Lawrence Valley attracted fewer emigrants than the Anglophone communities of Upper Canada, Burroughs and others who relocated north of the Vermont border would have been attracted by the region’s geographic and cultural isolation, the scarcity of local justices of the peace, and its distance from the Court of the King’s Bench, located in Montreal (47). Literary scholars working in the post-Revolutionary era have yet to recognize that Burroughs belonged to a generation of Americans who rejected US citizenship and sought to reinvent themselves as British subjects in a borderlands region.2 I argue in this essay that Burroughs and his contemporaries in Lower Canada form a neglected chapter in the afterlife of Loyalism, carrying forward the narrative of Loyalist opposition to the [End Page 591] War of Independence by revealing how successive waves of migrants—the late Loyalists—came into conflict over who owned Lower Canada’s settlements. As we will see, struggles over land between previously settled Loyalists and these later emigrants became the central topic of several early nineteenth-century Canadian publications that identify local spaces as the site of imperial injustice in post-Revolutionary British North America. Putting Burroughs into this British-Canadian context—one of resettlement, ambiguous loyalties, and ruined fortunes—offers a foothold into the region’s controversies while also revealing a web of economic, legal, and political entanglements that bring Lower Canada into the purview of early American literary studies and ongoing historiographical work on the loyalist diaspora. Although an utter failure by virtue of having lost his contest with the law, Burroughs winds up documenting an insider’s perspective on the late Loyalist predicament. In keeping with historiography that argues that “localism, not nationalism” defined culture and society in the Eastern Townships, Burroughs becomes an unlikely but illuminating advocate of the late Loyalists in the localizing, imperializing, and borderlands spaces of post-Revolutionary British North America (Little, Loyalties 10). The breakdown of local authority in Lower Canada described by Burroughs necessitated that the late Loyalists appealed to, and identified with, an imperial rule of law that local elites had supplanted through a system of personal and political privileges. By narrating what happens after he left the United States, Burroughs’s Canadian writings offer a literary recollection of a category of alien subjects who were caught within a local system of rule that deemed them unwelcome. Consequently, some of the late Loyalists described themselves as inassimilable to both British-Canadian forms of law and the political and economic structures of the United States that Burroughs and others like him rejected. Twists of fortune define the life of Stephen Burroughs, and so it should come as no surprise that a rebellious criminal would eventually come to identify with the rule of law as symbolized by the British Constitution. Born in 1766 to a Connecticut minister’s family, Burroughs acquired notoriety for a series of youthful exploits that led to a full-blown life of crime. Expelled from Dartmouth...

Human Rights in the British Constitution : A Prisoner of History

Human Rights in the British Constitution : A Prisoner of History

The Chartists and the Constitution: Revisiting British Popular Constitutionalism

AbstractDespite having a powerful influence on the historiography of radicalism and nineteenth-century politics for the past several decades, the language of the constitution has not recently received scholarly attention. In Chartist and radical historiography, the constitution is usually treated as a narrative of national political development. This article extends the horizons of Chartist constitutionalism by exploring its similarities with American constitutionalism. By doing so, it also opens up questions regarding the ideas of the movement. Like the Americans sixty years before, the Chartists were confronted by a parliament that they believed had superseded its constitutional authority. This perception was informed by a belief that the constitution rested on the authority of the fixed principles of fundamental law, which they argued placed limits beyond which Parliament had no power to reach. As a result, the Chartists imagined that the British constitution functioned like a written constitution. To support this claim, they drew on a sophisticated interpretation of English law that argued that the common law was closely related to natural law.

Constitutional Statutes

Abstract In recent years, British courts have treated constitutional statutes differently from ordinary statutes. This article sets outs to explain: (i) how courts have treated constitutional statutes differently from ordinary statutes; (ii) what a constitutional statute is; and (iii) why constitutional statutes should be treated differently from ordinary statutes. Courts have made it harder for ordinary statutes to repeal constitutional statutes by implication, and easier for constitutional statutes to repeal ordinary statutes by implication. A constitutional statute is a statute which regulates state institutions, and which possesses importance of a particular type that we describe. The nature of a constitutional statute largely—but not entirely—justifies the special treatment they have been given. These conclusions have wider implications, including for proposals to codify the British constitution.