The British Constitution

The book by Loughlin, entitled The British Constitution, begs the question of what is a constitution. This is a timely and challenging book. The author does a splendid job of addressing the somewhat amorphous idea of a British Constitution within the execution of its long held principles in its Government actions. This book is both and excellent introduction to the British Constitution, as idea and action, as well as a superb discussion of the challenges that are presented when a country accepts this “cultural” form of governing.

As Americans we understand the US Constitution as a single document and an amalgam of how the Government works and what they can do and the rights that we as citizens have in such an environment. In a sense the US Constitution, especially the Bill of Rights, was and is a clear written statement of how far the Government can go, and no farther. The problem, of course, is that it is often open to interpretation. In contrast the British Constitution is much more of an amalgam of written as well as unstated rights and responsibilities going back to the Magna Carta of 1215. It is built upon the tri-partite English relationships amongst the Crown, the Aristocracy, and the commoners. Each of these players has a role in this British Constitution. This is in stark contrast to the US Constitution wherein there is no room for any differences amongst the citizenry, the "three-fifths" rule notwithstanding. To understand the British Constitution one must understand and accept the class structure of the English society. To understand the American culture one must also accept the alleged classless structure.

Loughlin’s book is a small but significant contribution to this area of legal thought. It is especially important now because Britain is going through massive changes with the devolution or separation of its parts; Scotland, Wales and Northern Ireland. Scotland may very well find itself a separate country and if so one wonders what part of this Constitution it takes.

Loughlin presents the British Constitution through several Chapters. The overall challenge is that there is no document that one can point to as such a Constitution. Thus he takes this challenge and tries to make the best of it.

In Chapter 1 he spends time discussion what a Constitution is. In my view the best remark is that by Paine, which clearly defines a constitution as a written document containing principles. Paine was a contretemps to Burke, and Paine knew all too well what went into the American Constitution and also the coming chaos of the French process, post the Revolution. Burke was a traditionalist, one who could say, “...we all know what we mean by …” whereas Paine wanted clarity of definition.

In Chapter 2 he discusses writing a Constitution. As with the previous Chapter there is a substantial challenge, and he meets that in the very first part of the Chapter. Namely he states (p 23):

“…the British have always been reluctant to commits its basic rules to writing … the types of knowledge it embodies cannot easily be expressed in books or conveyed through formal instruction…”

Then he states that it is conducted via rules of procedure rather than principle. That is the challenge of such an idea. On the other hand one may argue that the US Constitution is also at the other extreme. For example the right to bear arms means what in a 21^st century, the same as it did in the eighteenth. Also the US has no express right of privacy and yet it was evoked solely for the “right” to have an abortion. One may have a delimited right of privacy but when it comes to Government monitoring and intrusion of electronic media the right somehow disappears. Thus even in an environment where principle is in writing the interpretation often taking precedence.

The key elements of the British Constitution as Loughlin states (p 26-27) are based upon the Magna Carta, The Petition of Right (1628) and the Bill of Rights (1689). The commentaries of Blackstone, Dicey and Bagehot establish a written fabric for better understanding what the Constitution may be as a result of these rights. The principle of the Crown in Parliament is one of the major corner stones that is essential to the British but would be incomprehensible to Americans. How much the Constitution has “evolved” is also discussed.

Chapter 3 discusses Parliamentary Government. It is dramatically different that the US system. It in many ways combined legislative, executive and even judicial powers in this strange concoction. The Crown has a role, but clearly a slowly disappearing one. The Crown may call for a new election but that is now a formality. But the British Parliament is an evolving entity as well.

Chapter 4 speaks somewhat of the expansion of the state and of particular current interest is the devolution of the entities such as Scotland. This is covered quite well in the book (see pp 80-83). In contrast to the South or Confederacy leaving the Union the separation of Scotland, namely devolution, can be seen as within the confines of the Constitution.

Chapter 5 discusses the issues of civil liberties. Here one must wonder how well this Constitution has worked. The author does speak of the Irish atrocities and deprivation of any civil liberties on pp 92-93. This in a sense is a clear example of where the “tradition” of an unwritten Constitution is defective as compared to a written form where all have equal rights.

Loughlin ends with some interesting thoughts on where the British Constitution may go to. For him it is the process and not any specific set of words. For Loughlin there are continual concerns that its evolution may have some substantial concerns.

This book is best read along with two others; Wilson’s Congressional Government and Bagehot’s The English Constitution. Wilson reveals in his book his great distaste of the US Constitution which was comprised of a balance of powers amongst the branches and he lays forth well before he ascended to the Presidency his desire for a position which combined the powers of the Crown with those of the Prime Minister. In contrast Bagehot provides an interesting and timely, 1867, understanding of the English Government and its roles while using the US in post-Civil War times as less than a sterling example of another Constitution.

Overall this is a very worthwhile read especially for Americans. It is a contre temps to our own Constitutional battles as well as the expanding power of the Executive.

There is an excellent review in the LRB by Sedley.  As Sedley states:

Although it took a while to settle in (monarchs continued purporting to suspend legislation into the early 18th century), the essential purpose and effect of the Bill of Rights were to make the crown, which had long since been forced – in principle at least – to delegate its judicial authority to the judges and was shortly to begin devolving its administrative authority to parliamentary ministers, subordinate to Parliament. In return, the state undertook to conduct all three core functions in the monarch’s name.

Thus far we have the structure, but very little of the content, of the British constitution. Blackstone, in the late 18th century, took its content to be assured by three institutions: Parliament for the redress of grievances, jury trial for the protection of the innocent and habeas corpus for the restriction of state power, the latter two springing from article 39 of Magna Carta and assured by a judiciary whose independence had been guaranteed by the 1701 Act of Settlement. It was Dicey, a century after Blackstone, who sought to encapsulate the content of the constitution in what he called the rule of law: the idea that because the constitution itself derived from the rights of individuals, its fixed purpose was to guarantee those rights by the equal application of the same law to everyone from the prime minister to the postman.

Namely there was a great deal of effort in evolving this erstwhile Constitution. In the final paragraph by Sedley appears a somewhat dire warning:

We are approaching a point, in other words, where departmental housekeeping is being used not to rebalance but to unbalance a central element of the constitution. Thanks to the ill-considered merger of the two functions, a secretary of state for justice is now able to use his departmental powers to occlude his own constitutional role as Lord Chancellor.

 Namely the executive appears to be consolidating power to an absolute. This struggle appears to be the same in the US as well. One can argue that here it started with Wilson, but Teddy Roosevelt was in a great sense the true usurper of the power of the executive totally unto himself. It was Wilson who refined it to where it is going now. This direction of flow of power should always be countered by the opposing branches, That simply is what we see in Congress today, the natural wisdom of the Founders, not just obstruction of the will of the executive.