Stability in flexibility: A British lens on constitutional success

doi:10.1017/CBO9781316651018.014

14 - Stability in flexibility: A British lens on constitutional success

from PART III - CASE STUDIES

Published online by Cambridge University Press: 05 August 2016

Erin F. Delaney

Edited by

Tom Ginsburg and

Aziz Huq

Show author details

Erin F. Delaney: Affiliation:
Northwestern University Pritzker School of Law
Tom Ginsburg: Affiliation:
University of Chicago
Aziz Huq: Affiliation:
University of Chicago

Book contents

Get access

Summary

INTRODUCTION

On many of the external metrics outlined in the Introduction to this volume, the United Kingdom ranks among the most successful nation states: It is a functioning democracy with robust rights protection; its public sector is one of the least corrupt; and its citizens benefit from an array of public goods, including health care, education, and a variety of other social welfare programs. From an internal perspective, the flexible British constitution appears well matched to the wants of its citizenry – as J.A.G. Griffith wrote more than thirty-five years ago, “the constitution is no more and no less than what happens. Everything that happens is constitutional. And if nothing happened that would be constitutional also” (Griffith 1979: 19). In short, there is no obvious gap between the aspirational and the actual.

This exceptional performance suggests we should look to the United Kingdom as a model for constitutional design. But, of course, the British constitution sits uneasily in contemporary constitutional studies. As an uncodified set of written laws and political practices with ancient roots (e.g., Magna Carta 2015) and modern fruit (e.g., The Fixed-Term Parliaments Act 2011), the constitution is difficult to pin down with precision and certainty. Even senior judges and politicians struggle: Lord Scarman described the constitution as “hidden, and difficult to find” (1993: 319), and Lord Callaghan suggested it has a certain “back of an envelope” quality to it (Hennessy 1995: 6). Academics agree that the specific substantive elements that make up the constitution are subject to debate (Hennessy 2007: 346) as well as that different understandings of the constitution – in Scotland and England, in particular – have coexisted for centuries (Feldman 2005: 347).

Yet, even if it were possible to extrapolate a modern model from this historically contingent and idiosyncratic system, an antecedent question niggles: How confident should we be in this positive assessment of the United Kingdom's constitutional success? A closer look at life in the British state uncovers roiling constitutional politics. Complaints abound of constitutional uncertainty, constitutional malaise, constitutional anomie – even constitutional crisis (Bogdanor 2015; Webber 2014). This discourse reveals a higher level of dissatisfaction than might be expected in a country that otherwise seems a paragon of constitutional success.

Type: Chapter
Information: Assessing Constitutional Performance , pp. 393 - 420

DOI: https://doi.org/10.1017/CBO9781316651018.014 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2016

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Book purchase

Temporarily unavailable

References

Allison, J.W.F. 2007. The English Historical Constitution. Cambridge: Cambridge University Press.

Bagehot, Walter. 1872. The English Constitution, ed. London: Oxford University Press.

Baker, John. 2009. “Our Unwritten Constitution, Maccabaean Lecture on Jurisprudence.” Proceedings of the British Academy (2010) 167: 91–117.Google Scholar

Baker, John H. 2004. “The Constitutional Revolution.” Lecture, St. Catherine's College, Cambridge, United Kingdom. April 20.

Ballinger, Chris. 2012. The House of Lords 1911–2011. Oxford: Hart Publishing.

Banner, Charles and Deane, Alexander. 2003. Off With Their Wigs! Exeter: Imprint Academic.

Barber, N.W. 2009. “Laws and Constitutional Conventions.” The Law Quarterly Review 125: 294–309.Google Scholar

Bendor, Ariel L. and Segal, Zeev. 2002. “Constitutionalism and Trust in Britain: An Ancient Constitutional Culture, a New Judicial Review Model.” American University International Law Review 17: 683–722.Google Scholar

Blackburn, Robert. 2013. “Constitutional Amendment in the United Kingdom.” In Engineering Constitutional Change, edited by Contiades, Xenophon, 359–388. New York: Routledge.

Blau, Adrian. 2008. “Majoritarianism under Pressure: The Electoral and Party Systems.” In Constitutional Futures Revisited, edited by Hazell, Richard, 233–248. Houndmills: Palgrave.

Bogdanor, Vernon. 2015. The Crisis of the Constitution. London: The Constitution Society.

Bogdanor, Vernon. 2009. The New British Constitution. Oxford: Hart Publishing.

Bogdanor, Vernon. 2003. “The Civil Service.” In The British Constitution in the Twentieth Century, edited by Bogdanor, Vernon, 237–279. Oxford: Oxford University Press.

Bogdanor, Vernon. 1981. The People and the Party System. Cambridge: Cambridge University Press.

Caird, Jack Simson, Robert Hazell, and Oliver, Dawn. 2014. The Constitutional Standards of the House of Lords Select Committee on the Constitution. London: University College.

Clifford, Ben and Morphet, Janice. 2015. “Afterward: The Scottish Referendum, the English Question and the Changing Constitutional Geography of the United Kingdom.” The Geographical Journal 181(1): 57–60.Google Scholar

Contiades, Xeonphon and Fotiadou, Alkmene. 2013. “Models of Constitutional Change.” In Engineering Constitutional Change, edited by Contiades, Xenophon, 417–468. New York: Routledge.

Crowley, Philip and Stuart, Mark. 2012. “Backbench Rebellion in the House of Commons, 1997–2010: Making a Policy Difference or Barking at the Moon?” Available at http://webpages.dcu.ie/~leg/Cowley.pdf.

Dicey, A.V. 1908. Introduction to the Study of the Law of the Constitution, ed. London: Macmillan.

Dixon, Rosalind. 2011a. “Constitutional Amendment Rules: A Comparative Perspective.” In Comparative Constitutional Law, edited by Ginsburg, Tom and Dixon, Rosalind, 96–111. Cheltenham, UK: Edward Elgar Publisher.

Dixon, Rosalind. 2011b. “Partial Constitutional Amendments.” University of Pennsylvania Journal of Constitutional Law 13: 643–685.Google Scholar

Eisgruber, Christopher L. 2001. Constitutional Self-Government. Cambridge: Harvard University Press.

Elkins, Zachary, Ginsburg, Tom, and Melton, James. 2009. The Endurance of National Constitutions. Cambridge: Cambridge University Press.

Feldman, David, ed. 2013. Law in Politics, Politics in Law. Oxford: Hart Publishing.

Feldman, David. 2005. “None, One or Several? Perspectives on the UK's Constitution(s).” Cambridge Law Journal 64(2): 329–351.Google Scholar

Flinders, Matthew. 2010. Democratic Drift. New York: Oxford University Press.

Fusaro, Carlo and Oliver, Dawn. 2011. “Towards a Theory of Constitutional Change.” In How Constitutions Change, edited by Oliver, Dawn and Fusaro, Carlo, 405–433. Oxford: Hart Publishing.

Gay, Oonagh and Winetrobe, Barry K.. 2008. “Watchdogs of the Constitution – The Biters Bit?” In Constitutional Futures Revisited, edited by Hazell, Richard, 197–214. Houndmills: Palgrave.

Gladstone, W.E. 1879. Gleanings of Past Years. London: John Murray.

Goldsworthy, Jeffrey. 2010. Parliamentary Sovereignty. Cambridge: Cambridge University Press.

Greer, Scott L. 2008. “Whitehall.” In Constitutional Futures Revisited, edited by Hazell, Richard, 123–138. Houndmills: Palgrave.

Griffith, J.A.G. 1979. “The Political Constitution.” Modern Law Review 42: 1–21.Google Scholar

Hazell, Richard. 2008. Constitutional Futures Revisited. Houndmills: Palgrave.

Hennessy, Peter. 2007. “From Blair to Brown: The Condition of British Government.” The Political Quarterly 78: 344–352.Google Scholar

Hennessy, Peter. 1995. The Hidden Wiring: Unearthing the British Constitution. London: Victor Gollancz.

Hockman, Stephen Q.C. and Bogdanor, Vernon. 2010. “Towards a Codified Constitution.” Justice 7: 74–87.Google Scholar

Huber, John D. 1996. “The Vote of Confidence in Parliamentary Democracies.” American Political Science Review 90(2): 269–282.Google Scholar

Issacharoff, Samuel. 2003. “The Enabling Rule of Democratic Constitutionalism: Fixed Rules and Some Implications for Contested Presidential Elections.” Texas Law Review 91: 1985–2011.Google Scholar

Jennings, Ivor. 1954. The British Constitution, ed. Cambridge: Cambridge University Press.

Kay, Richard S. 2013. “Changing the United Kingdom Constitution: The Blind Sovereign.” In Sovereignty and the Law, edited by Rawlings, Richard, Leyland, Peter, and Young, Alison L., 98–119. Oxford: Oxford University Press.

King, Anthony. 2001. Does the United Kingdom Still Have a Constitution? London: Sweet & Maxwell.

Le Sueur, Andrew. 2009. “From Appellate Committee to Supreme Court: A Narrative.” In The Judicial House of Lords 1876–2009, edited by Blom-Cooper, Louis et al., 64–94. Oxford: Oxford University Press.

Levinson, Sanford. 1995. “Introduction.” In Responding to Imperfection, edited by Levinson, Sanford, 3–11. Princeton: Princeton University Press.

Lijphart, Arend. 1999. Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries. New Haven: Yale University Press.

Lijphart, Arend. 1984. Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries. New Haven: Yale University Press.

Scarman, Lord. 1993. “Why Britain Needs a Written Constitution.” Commonwealth Law Bulletin 19: 317–323.Google Scholar

Lord Wilson of Dinton. 2004. “The Robustness of Conventions in a Time of Modernization and Change.” Public Law 407–420. www.sweetandmaxwell.co.uk/Catalogue/ProductDetails.aspx?recordid=469.

Loughlin, Martin. 2015. “What's It For?” London Review of Books 37(20): 29–30.Google Scholar

Loughlin, Martin. 2007. “Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice.” In The Paradox of Constitutionalism, edited by Loughlin, Martin and Walker, Neil, 25–48. Oxford: Oxford University Press.

McHarg, Aileen. 2008. “Reforming the United Kingdom Constitution: Law, Convention, Soft Law.” Modern Law Review 71: 853–877.Google Scholar

Murphy, Walter F. 1995. “Merlin's Memory: The Past and Future Imperfect of the Once and Future Polity.” In Responding to Imperfection, edited by Levinson, Sandford, 163–190. Princeton: Princeton University Press.

Norton, Philip (Lord Norton of Louth). 2015. “Parliament: A New Assertiveness?” In The Changing Constitution, ed., edited by Jowell, Jeffrey, Oliver, Dawn, and O'Cinneide, Colm, 171–193. Oxford: Oxford University Press.

Oliver, Dawn. 2015. “Regulating Politics in Government.” In The Changing Constitution, ed., edited by Jowell, Jeffrey, Oliver, Dawn, and O'Cinneide, Colm, 307–328. Oxford: Oxford University Press.

Oliver, Dawn. 2013. “Parliament and the Courts: A Pragmatic Defence of Parliamentary Sovereignty.” In Parliament and the Law, edited by Horne, Alexander, Drewry, Gavin, and Oliver, Dawn, 309–338. Oxford: Hart Publishing.

Oliver, Dawn. 2011. “The United Kingdom.” In How Constitutions Change, edited by Oliver, Dawn and Fusaro, Carlo, 329–355. Oxford: Hart Publishing.

Parris, Henry. 1969. Constitutional Bureaucracy. London: George Allen & Unwin Ltd.

Perry, Adam and Ahmed, Farrah. 2014. “The Quasi-Entrenchment of Constitutional Statutes.” Cambridge Law Journal 73(3): 514–535.Google Scholar

Rasch, Bjorn Erik and Congelton, Roger D.. 2006. “Amendment Procedures and Constitutional Stability.” In Democratic Constitutional Design and Public Policy: Analysis and Evidence, edited by Congleton, Roger and Swedenborg, Birgitta, 372–401. Cambridge: The MIT Press.

Rawlings, Richard. 2015. “A Coalition Government in Westminster.” In The Changing Constitution, ed., edited by Jowell, Jeffrey, Oliver, Dawn, and O'Cinneide, Colm, 194–221. Oxford: Oxford University Press.

Redish, Martin and Heins, Matthew. 2015. “Premodern Constitutionalism.” Northwestern Law & Economics Research Paper Series No. 15–13.

Sager, Lawrence. 1990. “The Incorrigible Constitution.” New York University Law Review 65: 893–961.Google Scholar

Tocqueville, Alexis. 2000. Democracy in America. Translated by Mansfield, Harvey C. and Winthrop, Delba. Chicago: University of Chicago Press.

Tsebelis, George and Money, Jeannette. 1997. Bicameralism. New York: Cambridge University Press.

Versteeg, Mila and Zackin, Emily. 2014. “American Constitutional Exceptionalism Revisited.” University of Chicago Law Review 81: 1641–1707.Google Scholar

Webber, Grégoire. 2014. “Eulogy for the Constitution That Was (Reviewing Martin Loughlin, The British Constitution: A Very Short Introduction (2013)).” International Journal of Constitutional Law 12: 468–486.Google Scholar

Whitaker, Richard. 2006. “Ping-Pong and Policy Influence: Relations between the Lords and Commons, 2005–2006.” Parliamentary Affairs 59: 536–545.Google Scholar